Roessing v. Pittsburg Rys. Company

• Decision Date: 03 January 1910
• Docket Number: 65
• Citation: 226 Pa. 523,75 A. 724
• Parties: Roessing v. Pittsburg Railways Company, Appellant
• Court: Pennsylvania Supreme Court

75 A. 724

226 Pa. 523

Roessing v. Pittsburg Railways Company, Appellant

No. 65

Supreme Court of Pennsylvania

January 3, 1910

Argued October 29, 1909

Appeal, No. 65, Oct. T., 1909, by defendant, from judgment of C.P. No. 3, Allegheny Co., May Term, 1904, No. 373, on verdict for plaintiff in case of Harry Roessing v. Pittsburg Railways Company. Reversed.

Trespass to recover damages for an alleged malicious prosecution. Before EVANS, J.

The facts are stated in the opinion of the Supreme Court.

Verdict for plaintiff for $2,500, upon which judgment was entered for $2,000 all above that amount having been remitted.

Error assigned was in refusing binding instruction for defendant.

The judgment is reversed, and is here entered for the defendant.

William A. Challener, with him Clarence Burleigh and James C. Gray for appellant. -- The mere fact of acquittal on a criminal charge does not, in an action against the prosecutor for malicious prosecution, establish want of probable cause, nor raise an irrebuttable presumption of the want of probable cause. If the testimony on the part of the defendant is undisputed that probable cause existed, the court may declare the result of the testimony as matter of law: Robitzek v Daum, 220 Pa. 61.

This case comes squarely within the rule that a jury ought not to be permitted to infer malice from the mere want of probable cause, when by other circumstances, it is disproved, and the case was not a proper one for the court to charge, as it did, that "in the absence of probable cause the jury may find from that fact alone that the prosecution was malicious:" Emerson v. Cochran, 111 Pa. 619.

Advice of counsel is evidence not to prove probable cause, but to rebut the inference of malice arising from the want of probable cause: Emerson v. Cochran, 111 Pa. 619.

Rody P. Marshall, with him Thomas M. Marshall, for appellee. -- The case was properly submitted to the jury: Auer v. Mauser, 6 Pa. Superior Ct. 618; Grohmann v. Kirschman, 168 Pa. 189; MacDonald v. Schroeder, 214 Pa. 411; Munns v. Dupont, 3 Wash. C.C. 31; Melvin v. Melvin, 130 Pa. 6; Coyle v. Snellenburg, 30 Pa.Super. 246; Greeney v. Water Co., 29 Pa.Super. 136; Bell v. R.R. Co., 202 Pa. 178.

Before FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE POTTER:

Before the plaintiff in this case could succeed, he was bound to show that the defendant had no probable cause for thinking that he was guilty of the offense for which it prosecuted him. He was bound to show an abuse of the privilege of prosecution, and that the defendant had acted in bad faith. In the present case the plaintiff met this burden only to the extent of proving his arrest, and that he was held by the magistrate to await the action of the grand jury, his indictment and trial, and his acquittal. Defendant admitted responsibility for the arrest and prosecution of the plaintiff, but claimed that there was probable cause for its action, and therefore it could not be held liable for damages in the present case.

The circumstances which led to the arrest and prosecution of the plaintiff were as follows: The plaintiff was a conductor in the employ of the defendant company, and was in charge of a street car. W. H. O'Brien, the employment agent of the company, testified for the defendant that operatives were employed to ride in the cars and check the reports of the conductors. The operative counts the passengers and sees whether they are all registered. His report shows whether the conductor is turning in all fares collected by him or not. The employment agent testified that in this case three operatives made separate reports to him of what they had observed on plaintiff's car. These three reports made on different days and by different men, each showed a discrepancy between the fares collected and those registered by the conductor. In the first report there was a deficit of ten fares; in the second of twenty-one fares, and in the third of two fares. The operatives employed were all known to witness to be of good reputation for truth and veracity, and also to be careful men. The witness testified that he believed their reports. After having received these reports from the operatives, witness detailed two special officers to ride on plaintiff's car from one end of the line to the other, in order to verify the previous reports received from the operatives. They did so on two successive days, and each reported a deficit of eleven fares on one day, and of fifteen upon the other. The witness showed that the reports of the operatives and the special officers were submitted to James Francis Burke, Esq., as special attorney for the company, and that on his advice the prosecution was instituted. There was, however, a failure to convict in the criminal court. In the present case the judge refused to give binding instructions for the defendant, and submitted the question of probable cause for the prosecution, to the jury.

The main question raised here by the assignments of error, is whether or not, under the uncontradicted evidence, probable cause for the action by the defendant was so clearly shown that the trial judge should have taken the case from the jury, and directed a verdict for the defendant. There was no dispute as to the facts which induced the prosecution, and therefore the responsibility for deciding whether these facts constituted probable cause was upon the court, and should not have been shifted to the jury. The rule is well settled. Thus in the late case of Robitzek v. Daum, 220 Pa. 61, it is said, "What is probable cause, and whether it exists under an admitted or clearly established state of facts, is a question of law for the court." And in Fisher v. Forrester, 33 Pa. 501, Justice WOODWARD said (p. 508): that the case stated was "a case in which the court ought to have taken the question of probable cause away from the jury, and ruled that under the evidence, if believed by the jury, the...