Van Sant v. American Express Co.

• Decision Date: 21 October 1947
• Docket Number: No. 9044.,9044.
• Citation: 169 F.2d 355
• Parties: VAN SANT v. AMERICAN EXPRESS CO.
• Court: U.S. Court of Appeals — Third Circuit

169 F.2d 355 (1947)

VAN SANT v. AMERICAN EXPRESS CO.

No. 9044.

Circuit Court of Appeals Third Circuit.

Argued April 15, 1946.

Reargued April 22, 1947.

Decided October 21, 1947.

On Rehearing June 15, 1948.

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T. Edward O'Connell, of Washington, D. C., and Thomas D. McBride, of Philadelphia, Pa., for appellant.

Robert T. McCracken, of Philadelphia, Pa. (C. Russell Phillips and Richard E. McDevitt, both of Philadelphia, Pa., on the brief), for appellee.

Harry I. Rand, of Washington, D. C., for United States as amicus curiae.

Before McLAUGHLIN and O'CONNELL, Circuit Judges, and GOURLEY, District Judge.

GOURLEY, District Judge.

This matter comes before the Court on Petition for Rehearing filed by Frances Van Sant as appellant.

The plaintiff herein took an appeal to this Court on October 2, 1945, from the action of the District Court of the United States for the Eastern District of Pennsylvania, granting the motion of the defendant for a directed verdict in its favor and rendering judgment thereon. Oral argument on said appeal was held on the 15th day of April, 1946, and the judgment of the lower court was affirmed by this Court, and an opinion filed December 18, 1946. 158 F.2d 924. The Petition for Rehearing was granted on March 25, 1947, and the matter was heard by the Court on April 22, 1947.

It is contended by the plaintiff that the decision of this Court in affirming the judgment of the lower court was not decided in accordance with prior decisions of this Court, and controlling principles of law in the Commonwealth of Pennsylvania.

In this connection three propositions are urged by the plaintiff:

First: The plaintiff's evidence justifies a finding that the prosecution was instituted, at least in part, for a private end; hence, the burden of proof to show the existence of probable cause and lack of malice was on the defendant.

Second: The existence of probable cause is not tested as of the time when the complaint is filed and the prosecution initiated, or at the precise instant of arrest in all cases.

Third: Actual belief in guilt is an essential element of probable cause. If without actual belief in guilt any private person takes any affirmative act to further the prosecution, he is liable even though the prosecution was initiated by himself or another with probable cause.

In affirming the judgment of the lower court in the first instance, it was held, in substance, that under the admitted or clearly established facts which existed on March 12, 1941, probable cause existed for the prosecution of the various complaints filed against Edna Frances Van Sant and, as a result thereof, it matters not whether the motives of the agents of the defendant company were praiseworthy or malicious, and it was the duty of the Court to enter a directed verdict in favor of the defendant. Van Sant v. American Exp. Co., 3 Cir., 158 F.2d 924.

This case is very unusual in that the action for malicious prosecution is based on several arrests of the plaintiff which it is claimed were instituted in behalf of, or at the request of the defendant. Specifically, the plaintiff alleged and offered evidence to prove —

(1) That she was arrested at the instance of the defendant, acting through its agents, servants and employees, on or about March 12, 1941, in the City of Baltimore, Maryland, said arrest being made on the basis of an information filed in the City of Philadelphia on March 12, 1941.

(2) That she was arrested and prosecuted at the instance of the defendant, acting through its agents, servants, and employees, for other offenses alleged to have been committed in Pittsburgh, Philadelphia and Upper Darby, Pennsylvania; Minneapolis, Minnesota, and Providence, Rhode Island.

Reference will be made to the background of this action in some detail in order that the subsequent discussion can be more clearly understood.

The plaintiff is a resident of Washington, D.C. The defendant, American Express Company, is an unincorporated association organized under the laws of the State of New York.

The plaintiff brought her action on the ground that the defendant falsely, maliciously and without probable or reasonable cause instigated a number of prosecutions against her in various state courts each of which was either abandoned or resulted in her acquittal. Specifically the plaintiff has alleged:

(1) She was arrested at the instance of defendant, acting through its agents, servants, or employees, on or about March 12, 1941, in the City of Baltimore, Maryland.

(2) At the instance of defendant she was brought to Philadelphia on March 13, 1941, where she was questioned by representatives of the defendant and members of the Police Department in the City of Philadelphia.

(3) She was questioned on March 14, 1941, while in the custody of the law, by representatives of the defendant, members of the Police Department in the City of Philadelphia, and presented for identification to numerous individuals who claimed they were defrauded.

(4) That she was arraigned before a magistrate on March 17, 1941 when a further hearing was requested by representatives of the defendant for the purpose of further investigation;

(5) That she was subjected to additional questioning by representatives of the defendant and members of the Police Department from March 13 to March 25, 1941;

(6) That on March 25, 1941, she was given a further hearing before a magistrate in the City of Philadelphia, in which she was charged with having committed offenses of false pretense, forgery, and uttering and publishing forged instruments;

(7) That after said hearing she was released on bail to appear at Philadelphia, Pittsburgh and Upper Darby, Pennsylvania;

(8) Said offenses were set forth to have occurred in Philadelphia, Pittsburgh and Upper Darby, all in the State of Pennsylvania;

(9) She was placed on trial in Pittsburgh on May 5th, and acquitted on May 7, 1941;

(10) Plaintiff's arrest was also caused by defendant on warrants issuing from Minneapolis, Minnesota, and Providence, Rhode Island, as a result of which she was imprisoned from April 14, 1941, until April 19, 1941, when she secured her release on bail;

(11) On or about May 15, 1942, plaintiff was extradited to Minneapolis, Minnesota, on the charges instigated by defendant as aforesaid, where, after being held in jail for about 15 days, she was released and discharged because the witnesses testified to her innocence;

(12) The charges preferred against her at Providence, Rhode Island, at the instance of the defendant aforesaid, were abandoned;

(13) On October 13, 1942, plaintiff appeared for trial in Media, Pennsylvania, for the offense alleged to have been committed in the Township of Upper Darby, Pennsylvania, and was acquitted and discharged of such charge on October 15, 1942;

(14) On April 28, 1943, plaintiff was tried and acquitted on the charges preferred against her in the City of Philadelphia.

A situation, therefore, arises where probable cause might be declared to exist in connection with one of the arrests or prosecutions, and would not be found to exist in connection with all.

The American Express Company deals in the sale, inter alia, of negotiable money orders and travelers checks. In the conduct of its business it maintains what amounts to a private police force called an Inspectors Department. The prescribed duties of this department are to cause the apprehension and prosecution of any persons thought to have committed offenses whereby the Company has sustained loss and thus to prevent and minimize future losses.

The head of that department is James J. Bulger, an officer who has the title of Assistant Vice President. Under his supervision there are various agents working in different parts of the United States and, perhaps, elsewhere.

In the year 1940 a gang of forgers was arrested in Cincinnati, Ohio, for fraudulent negotiation of travelers checks. The American Express Company cooperated in the arrest of that gang. The head of the gang was Wilbur Herbert Hartman. Among his accomplices were his wife, Pauline Hartman, Ruby Silber, and her husband, Carl Silber. At the trial Hartman was sentenced to prison for not less than one nor more than twenty years. The record of the present case does not show the exact disposition as to the others.

Bulger had full details on this gang not only because of the active cooperation of his department, but also because his agent, Charles C. Troyano, sent him a full report in June, 1940.

Then on January 2, 1941, sixty-three blank money orders of the American Express Company were stolen from a Western Union office at Columbus, Ohio, by a man who was never apprehended. Between January 3, 1941 and January 25, 1941, sixty-two of these money orders were negotiated by a woman (or women) who would purchase certain female apparel, pay for it with one of these money orders filled in for the sum of $45, payable to and endorsed "Relda Hardman", receiving in each instance the amount of change in cash. Such orders were cashed on the dates and in the cities listed as follows:

January 6, 1941 — Huntington, West Virginia.

January 11, 1941 — Minneapolis, Minnesota

January 11, 1941 — St. Paul, Minnesota

January 13, 1941 — Buffalo, New York

January 15, 1941 — Boston, Massachusetts

January 15, 1941 — Providence, Rhode Island

January 17, 1941 — Philadelphia, Pennsylvania

January 20, 1941 — Pittsburgh, Pennsylvania

January 25, 1941 — Indianapolis, Indiana

Bulger was informed of the loss on January 3, 1941. Upon presentation of these money orders for payment the American Express Company refused payment. Bulger assigned various agents to investigate, among them Jose T. Medina, who was in Buffalo, New York. On January 23, 1941, Medina reported to Bulger a description of the woman who had passed the money orders given him by an identifying witness. The description is as follows: "Age about 32 to 35; weight 125 lbs.; height, 5 feet, 5...