Shoemaker v. Shoemaker

• Decision Date: 30 January 1951
• Docket Number: No. A--673,A--673
• Citation: 78 A.2d 605,11 N.J.Super. 471
• Parties: SHOEMAKER v. SHOEMAKER et al.
• Court: New Jersey Superior Court — Appellate Division

Page 471

11 N.J.Super. 471

78 A.2d 605

SHOEMAKER v. SHOEMAKER et al.

No. A--673.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 15, 1951.

Decided Jan. 30, 1951.

Morris Spritzer, New Brunswick, argued the cause for plaintiff-respondent (Charles Schwartzman, Iselin, attorney).

Horace E. Bunker, Plainfield, argued the cause for defendant-appellant (Bunker & Elliott, Plainfield, attorneys).

Before Judges Mc,GEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.A.D.

The defendant, George Shoemaker, on June 6, 1949 swore to a complaint before the Magistrate of Raritan Township charging that plaintiff on June 3, 1949, 'did make threats and was abusive' in violation of the Disorderly Persons Act and a township ordinance.

A warrant issued upon which plaintiff was arrested and jailed for four days. The hearing on June 30 before the magistrate resulted in the dismissal of the complaint for insufficient evidence. The plaintiff thereupon instituted this action in Middlesex County Court and obtained a jury verdict upon a count for malicious prosecution. Defendant appeals from the consequent judgment.

The parties and the trial court dealt with the criminal charge as growing out of an incident which occurred, not on June 3, 1949, as stated in the criminal complaint, but on Sunday, June 5, 1949. The defendant's evidence was that he swore out the complaint after visiting the magistrate with his seven-year-old son and having the child tell the magistrate something not disclosed in the record. The plaintiff's evidence below was that the child on that Sunday beat plaintiff's pet pigeons with a stick and plaintiff told him to go away. Plaintiff expressly denied he had threatened or abused the child. The defendant and the child were the only witnesses at the magistrate's hearing. There is, however, no transcript of their testimony in this record. It further appears the magistrate had the benefit of a psychiatrist's report concerning plaintiff, which was also put in evidence below and which was prepared after an examination of plaintiff requested by plaintiff's attorney.

The fundamental grounds upon which this action for malicious prosecution was based were that the plaintiff was accused without reasonable or probable cause, that the defendant was actuated by a malicious motive in making the charge, and that the proceeding has terminated in plaintiff's favor. Unless the evidence in the case sufficiently establishes the existence of all three of these grounds, the plaintiff's suit must fail. Evans v. Jersey Central Power & Light Company, 119 N.J.L. 88, 194 A. 144 (E. & A. 1937); Little v. Little, 4 N.J.Super. 352, 67 A.2d 201 (App.Div.1949).

The principal ground of appeal is that the trial court should have granted the defendant's motion for judgment made at the close of the testimony because, defendant contends, plaintiff's proofs did not sustain the burden upon him to show want of probable cause and, alternatively, that defendant's uncontroverted proofs demonstrated that the defendant had reasonable cause for the charge.

Where the question whether or not defendant had reasonable or probable cause for initiating the proceeding against the plaintiff depends, in part, at least, upon the facts the existence of which are in dispute, it is the function of the jury to settle those facts and upon doing so, to determine on the whole case whether or not reasonable or probable cause has been shown, such determination being based upon proper instructions from the court. Dalton v. Godfrey, 97 N.J.L. 455, 117 A. 635 (E. & A. 1922). But where the facts are not controverted, the question of reasonable or probable cause is one of law to be detremined by the court and its submission to the jury is error. Vladar v. Klopman, 89 N.J.L. 575, 99 A. 330 (E. & A. 1916).

Whether in an action for malicious prosecution the evidence presents a jury question on this issue or a question for determination by the trial judge is an essential consideration upon trial. The action is not favored in the law, since public policy encourages the exposure of crime, which a recovery against one initiating the proceeding obviously tends to discourage. Chief Justice Gummere said in the Vladar case (89 N.J.L. at pages 579--580, 99 A. at page 332): '* * * It is true that, ordinarily, where a fact is proved which raises a presumption of liability on the part of the defendant, and other facts are put in evidence which tend to overthrow that presumption, a question is presented for the determination of the jury rather than of the court. But actions for malicious prosecution have always been differentiated by the courts, so far as this special feature of litigation is concerned. The rule which makes the existence or non-existence of probable cause, when the facts are not in dispute, a matter to be determined by the court, is probably the outgrowth of a public policy, the purpose of which was to encourage criminal prosecutions at the instance of private citizens, by making them certain that they might safely intervene to put in motion the machinery of the criminal law against apparent violaters of its provisions, without being liable to be mulcted in damages, in case the prosecution should fail through lack of sufficient evidence or, perhaps, through the vagaries of the trial juries of earlier days. But, whatever may be its foundation, and whether it be logical or not, it has been too long in existence, and too universally followed, to be now subject to question.'

The substantial question argued is whether the defendant at the time he initiated the criminal proceeding honestly believed in plaintiff's guilt upon facts which were such that reasonable men could regard them as proof that plaintiff was guilty of the charge. Plaintiff contends that the proof of the dismissal was evidence not alone of the termination of the proceeding in plaintiff's favor but also of the lack of reasonable and probable cause for its institution. It would seem on principle that if at its inception the proceeding was honestly brought on reasonable grounds the manner in which its termination was brought about should not be a material consideration on the issue of want of probable cause. The case does not involve the question of liability of a person initiating criminal proceedings against another upon probable cause and for a proper purpose and thereafter taking an active part in pressing the proceedings after discovering there is no probable cause therefor. See Restatement on Torts, vol. III (1938), sec. 655.

A difference of view has arisen, however, over the effect of the disposition of the criminal proceeding itself as evidence of the absence of probable cause. Prosser on Torts (1941) p. 876. The Restatement declares that a termination by discharge of the plaintiff by a committing magistrate upon a preliminary hearing for failure to prove a Prima facie case (sec. 663) or because of an unexplained refusal of the grand jury to indict (sec. 664) is conclusive of the lack of probable cause and that the voluntary abandonment by the defendant of the proceeding, or his failure to press the prosecution, is evidence of lack of such cause (sec. 665(1)). On the other hand, the Restatement declares that a termination upon plaintiff's acquittal after trial (sec. 667), or upon the abandonment of the proceeding by the public prosecutor on his own initiative (sec. 665(2)) is not evidence that the accuser acted without probable cause.

We doubt that this distinction has a sound foundation. Where it is urged, as here, that defendant when he made the complaint did not have an honest belief on reasonable grounds that plaintiff was guilty of the charge made, the determinative evidence, it seems to us, should be such as bears upon the conduct of the defendant at the time of the charge and whether there was then such state of facts as to lead men of ordinary caution and prudence to entertain an honest belief that plaintiff was guilty.

Even if this defendant had voluntarily abandoned the proceeding at a later date, that fact, standing alone, does not necessarily mean that there was a want of...