Opinion
May 6, 1936.
July 10, 1936.
Malicious prosecution — Termination of criminal prosecution — Assessment of part of costs upon defendant — Evidence — Malice — Probable cause — Verdict — Amount — Excessiveness.
1. The fact that the defendant in a criminal prosecution is directed to pay one-half of the costs, although he is acquitted, is not a bar to an action by him for malicious prosecution.
2. In an action for malicious prosecution, in which it appeared that plaintiff had been acquitted on a charge of larceny of certain fixtures from a house belonging to defendant which had been occupied by plaintiff, the evidence was on appeal held sufficient to sustain findings of malice and want of probable cause on the part of defendant and to support a verdict for plaintiff.
3. Verdict in the amount of $500 held not excessive, especially where there was evidence which warranted the submission of the question of punitive damages to the jury.
Appeal, No. 41, April T., 1936, by defendant, from judgment of C.P. Allegheny Co., July T., 1933, No. 1266, in case of Daniel Anolik v. Samuel Marcovsky.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Judgment affirmed.
Trespass for malicious prosecution.
Verdict and judgment for plaintiff in the sum of $500.
The facts are stated in the opinion of the lower court, GRAY, J., as follows:
The jury returned a verdict of $500 for the plaintiff. Defendant has moved for a new trial on the grounds that the verdict is against the weight of the evidence, against the law and is excessive, and has also moved for judgment n.o.v., the reason for which urged at the argument was that there was probable cause for the prosecution of the plaintiff by the defendant as a matter of law.
Plaintiff bought a home from the defendant; the mortgage was foreclosed; defendant repurchased the property; plaintiff remained in possession and claimed that he had a lease from defendant for the premises at fifty dollars per month rental. Defendant testified that a lease was offered the plaintiff, but that he refused to sign it and remained in possession. Defendant issued a landlord's warrant and sold plaintiff's household goods except those that were retained by plaintiff under his claim of exemption. Plaintiff removed from the premises. Defendant's attorney visited the premises and observed that a screen door, a water heater, several globes from a chandelier, a partition in the cellar, and a sink from the third floor were missing. Several persons told the defendant's attorney of the removal of these fixtures, and one witness testified that he saw the screen door on the truck in which the plaintiff's household goods were removed from the premises. Defendant's attorney told him what he had discovered and advised him to make an information against the plaintiff, which defendant did, charging him with the larceny of a screen door, a water heater, a coal bin, and other personal property to the value of $160.
Plaintiff was indicted and tried in the Quarter Sessions Court and acquitted. The jury directed that the costs be paid by the plaintiff and the defendant in equal shares. Defendant denied taking any of the articles involved in the information and indictment except the water heater, which he admitted he had taken and given away as junk. He claimed title to the water heater and testified that while he was the owner of the premises the water heater was detached from the real estate and was replaced by a boiler and furnace which had cost him $400.
When the criminal case was first called for trial the Trial Judge endeavored to have the parties settle the controversy between them and continued the case. The plaintiff and defendant went to the place of the plumber to whom the plaintiff had given the water heater material, and plaintiff offered to return the water heater to the defendant, but it was found it had been dismantled and therefore could not be returned to the defendant in workable condition and no settlement was effected. The case then came on for trial and, as stated, plaintiff was acquitted and the costs divided between him and the defendant.
It is contended that the criminal case did not terminate favorably to the plaintiff because of the directions to pay half the costs. We do not agree with this contention and do not consider the cases cited by the defendant are applicable. There was no compromise of the criminal case. The effort made at settlement was instituted by the Trial Judge. The plaintiff was found not guilty of the crime charged against him, and while it is true the jury evidently considered that he was not free from fault in the matter by directing him to pay half the costs, they also were of the opinion that the defendant did not have probable cause for the prosecution and directed him to pay half the costs. Under such circumstances, the plaintiff's action did not fail because of the fact that plaintiff was directed to pay half the costs when he was acquitted. Urich v. Neuer, 2 Grant Cases 272.
There was ample evidence of malice to carry the case to the jury on that essential element, even though defendant did act on advice of counsel. The mere fact that fixtures were missing from the house after plaintiff left it was not enough evidence that plaintiff had taken these fixtures to warrant prosecution of him without some proof that plaintiff had removed these fixtures. Counsel for defendant had only hearsay evidence for this, and the only testimony offered on that subject was by one witness who said he saw a screen door among the effects taken away by plaintiff. There was absolutely no testimony that plaintiff had taken the other articles with the larceny of which he was charged except as to the water heater, and there was ample testimony to sustain the plaintiff's contention that he owned the water heater. There was also testimony that defendant had offered to withdraw the criminal prosecution for money. The jury found there was malice and rightly so.
There was a dispute in the testimony relating to probable cause which the jury resolved in favor of the plaintiff with reason. As to some of the items of personal property mentioned in the information and indictment, there was absolutely no evidence at all that plaintiff had stolen them. The evidence as to the screen door was very meager and the weight of the evidence was in favor of the plaintiff as to the question of the title to the water heater. On such a state of facts the court could not decide the question of probable cause as a matter of law.
We do not consider the verdict excessive. The only actual expense proven was the $100 attorney's fee. But as the plaintiff was subjected to the humiliation of an arrest and a trial in the criminal court, a verdict of $500 seems to us to be quite reasonable, especially as there was evidence which warranted the submission of the question of punitive damages to the jury.
The motions will both be denied.
Defendant appealed.
Error assigned, among others, was refusal of judgment for defendant n.o.v.
Julius L. Schoenberg, with him W.M. Ewing, for appellant.
Maurice H. Goldstein, with him Saul Schein, for appellee.
Argued May 6, 1936.
The judgment is affirmed on the opinion of Judge GRAY of the court below. The facts as stated in that opinion distinguish this case from Altman v. Standard Refrigerator Co., 315 Pa. 465, 173 A. 411; Werner v. Bowers, 318 Pa. 518, 178 A. 831; and Alianell v. Hoffman, 317 Pa. 148, 176 A. 207, recently decided by the Supreme Court, and relied on by appellant. MacDonald v. Schroeder, 214 Pa. 411, 63 A. 1024; Randall v. Fenton Storage Co., 117 Pa. Super. 212, 177 A. 575, and Farneth v. Commercial Credit Co., 313 Pa. 433, 169 A. 89, give support to the ruling of the court below.
Judgment affirmed.