Stueber v. Admiral Corporation, 9658.

• Decision Date: 03 February 1949
• Docket Number: No. 9658.,9658.
• Citation: 171 F.2d 777
• Parties: STUEBER et al. v. ADMIRAL CORPORATION.
• Court: U.S. Court of Appeals — Seventh Circuit

171 F.2d 777 (1949)

STUEBER et al. v. ADMIRAL CORPORATION.

No. 9658.

United States Court of Appeals Seventh Circuit.

January 5, 1949.

Rehearing Denied February 3, 1949.

Ferris E. Hurd and John R. Whitman, both of Chicago, Ill. (Pope & Ballard, of Chicago, Ill., of counsel), for appellant.

Julius L. Sherwin and Theodore R. Sherwin, both of Chicago, Ill., for appellees.

Before KERNER, and SPARKS, Circuit Judges, and LINDLEY, District Judge.

LINDLEY, District Judge.

Defendant appeals from two judgments rendered upon the verdicts of a jury in a consolidated action, wherein the two plaintiffs sued for malicious prosecution. Defendant questions the propriety of the action of the District Court in, (1), denying its motion for a directed verdict, (2), admitting evidence, (3), excluding other evidence, (4), giving certain instructions and, (5), refusing to charge the jury in accord with its requested instructions.

On May 1, 1946, defendant's warehouse, wherein were stored radios, radio parts and other equipment, was burglarized and some $19,000 worth of merchandise stolen. This included more than 3,000 radio loud speakers; over 1,000 "Admiral Life-Time" Phonograph needle cards, on which were mounted a total of 12,792 needles; and some 586,000 feet of yellow wire. The speakers bore a number, "78 B 7," identifying them as having been manufactured expressly for defendant. Defendant did not ordinarily sell these as separate articles but placed them in completely assembled radios distributed to the trade. The needle cards carried the Admiral trade-mark and were usually sold in small lots. The regular wholesale price to dealers was $1.25 per needle, or $15 per card.

Plaintiffs were partners in a wholesale business known as "Chicago Radio parts Supply," located in the basement of 5327 West North Avenue, Chicago, under a retail and repair shop run by Robert Stueber called "Bob's Radio and Appliance Sales and Service." Plaintiff James Stueber also conducted another business under the name of "Radio Electric Laboratories" at another location. James knew Miles Svoboda and his brother Jerry, who operated a radio retail and repair shop, under the name of "West Town Sound" at 5920 West Cermak Road, Cicero. Plaintiffs had never bought anything from the Svobodas but the latter had been customers of plaintiffs. The Svobodas were not engaged in wholesale business.

In June, 1946, James Stueber, while in the Svoboda shop, was shown a needle card, bearing the word "Admiral" and a speaker. Svoboda told James that these were samples of distress merchandise which could be purchased at abnormally low prices. To James' inquiry as to why he could not deal directly with the party who owned the merchandise, Svoboda replied that the owner was a rough character with whom it was very difficult to deal. Eventually James bought from the Svobodas some 1,200 needles (100 cards) and 700 speakers, paying less than half the wholesale price. For the first lot of merchandise he paid $500 in cash; for the second, he gave a check for $506 payable to cash. Thereupon James caused the needle cards and speakers which he had purchased to be moved to and stored in the storeroom of himself and his brother and they began selling the merchandise in their wholesale business. The speakers, purchased at 75¢, were sold at from $1.25 to $2.65 each and the needles, purchased at 50¢ each, were sold for $1.

Defendant had promptly reported the May 1st burglary and the Chicago police had persistently attempted to locate the stolen merchandise. What they learned eventually led them to plaintiffs' place of business on September 21, 1946. At that time plaintiffs told the officers that they had been advised some few days prior thereto that the property they had might be stolen goods. At the trial, Robert said that he had previously heard of the Admiral burglary and of the theft of some $19,000 worth of merchandise. When they learned that the merchandise he and his brother had bought might be a part of the stolen property, he said that he and James discussed what could be "done with it," if it was "hot," what they should do with it and whether they should report it to the police or hide it. However, they took no steps at any time before their arrest to make known to any one their possession of the questionable property.

Plaintiffs were lodged in jail on Saturday, September 21, and remained there, under conditions which we shall discuss later, until the following Monday, when the police for the first time informed defendant that they had been apprehended and were suspected of being guilty of the crime of receiving stolen property. On that morning, September 23, the police showed Heinrich, defendant's representative, the needle cards and speakers found in the possession of plaintiffs. Heinrich saw 109 cards bearing defendant's name "Admiral." He identified the speakers by defendant's special number, 78 B 7. He was then asked to sign complaints, but refused to do so until he had returned to defendant's office and consulted with his superior officers. After doing this, the complaints having been written by the police in the meantime, Heinrich returned to the police station and signed them, charging plaintiffs with having received stolen property. Heinrich testified that he received "certain information" from the police but he did not disclose just what he had been told; the record is wholly silent as to just what information he had received from any source or upon what he had relied. Plaintiffs were immediately released on bond and, later, in the Municipal Court the charge against each of them was dismissed. Thereafter each filed suit and the two causes of action were consolidated for trial.

It is clear that plaintiffs, in order to succeed, were bound to show by the preponderance of the evidence that defendant had caused them to be prosecuted without any probable cause and with malice. Stated otherwise if defendant had "reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused was guilty of the offense charged," probable cause existed. Knickerbocker Ice Co. v. Scott, 76 Ill.App. 645 at page 647; Harpham v. Whitney, 77 Ill. 32 at page 39; Jacks v. Stimpson, 13 Ill. 701, 702. Where there is evidence both pro and con, obviously the question becomes one of fact which must be submitted to the jury. Before we can say the trial court erred in failing to direct a verdict for defendant, the record must reflect clear error in the holding that the evidence was sufficient to go to the jury. It is our duty to accept as true all the facts which the plaintiffs' evidence tends to prove and to draw against the proponent of the motion all reasonable inferences most favorable to the respondent. If the evidence is of such character that reasonable men, in an impartial exercise of their judgment, may reach different conclusions, the case must be submitted to the jury. Worcester v. Pure Torpedo Co., 7 Cir., 140 F.2d 358, 359;...