Cooper v. Electro-Tint Engraving Co. , 70 Pa. Super. 517 ( 1918 )

Opinion by

Williams, J.,

Defendant appeals from an adverse judgment in malicious prosecution.

May 9, 1916, plaintiff was arrested by a detective, charged with stealing three air brushes from defendant’s plant. He was held for court, indicted, and subsequently acquitted. He brought this action. Defendant set up that it was not the prosecutor and that it had probable cause.

Defendant’s president, and secretary, were notified that three air brushes had been stolen from the workroom on the morning of May. 9, 1916. They ascertained upon investigation that a slightly built young man had come into the place shortly before seven o’clock, and said to the janitor, “Hello” or “Good morning, Mr. Anderson,” “punched” the time clock and proceeded up stairs. Shortly after, the man came out, said something about tobacco to the janitor, and left. He wore a blue suit and derby hat, and the janitor thought he had worked at the plant. The number “punched” in the clock was “31,” plaintiff’s number when he had worked at the place four months before. A police detective, Burgess, responded to a call for an officer, the facts were stated to him, he proceeded to the vicinity of Cooper’s home and apprehended him. Cooper was roughly dressed when taken into custody and asked to be allowed to change his clothes. His request was refused. Upon arriving at defendant’s plant Cooper was asked to repeat the words, “Good morning, Mr. Anderson” to the janitor who thereupon partially identified him as the morning intruder. The failure to identify was due, it was alleged, to the difference in costume and the detective advised that plaintiff be allowed to go home and change his clothes. After a conversation with defendant’s president, out of plaintiff’s hearing, Burgess took plaintiff to the police station and locked him up. At the magistrate’s hearing, defendant’s president testified against plaintiff and Anderson positively identified him as the early morning visitor to defendant’s plant.

The detective, at the trial of this action, inferentially denied that he wanted to let plaintiff change his clothes, after admitting he had made such á request. Testimony was admitted, under objection, that plaintiff was at home in bed at the time the clock was “punched.”

Appellant’s first contention that defendant was not the prosecutor is not tenable. The arrest was made at the instance, and with the knowledge and consent of defendant, although the officer was not expressly directed to make it. This was sufficient to make defendant liable as a party to the prosecution: Burk v. Howley et al., 179 Pa. 539; McAleer v. Good, 216 Pa. 473.

It contends further that, the facts being admitted, the question of probable cause was one of law. This would be true if the inferences to be drawn from the testimony were clear of doubt and the evidence without conflict. The court below, in submitting the case to the jury in effect held that the uncontradicted evidence did not establish probable cause, and with this conclusion we agree. Plaintiff was arrested, contrary to the advice of the city detective, on a partial identification, or the jury might have so found. The circumstances surrounding the arrest were not so free from doubt as to warrant tbe action taken.

The remaining ground urged by appellant is the irrelevancy of tbe testimony of the whereabouts of tbe plaintiff at the time tbe clock was “punched.” This bad a tendency to establish plaintiff’s innocence but that does not necessarily make it incompetent: 26 Cyc. 96; and see ICatterman v. Stitzer, 7 W. 189. Evidence of plaintiff’s innocence was already in tbe case by tbe record of acquittal. Tbe cases cited by appellant are not in point. They refer not to tbe competency of tbe evidence, except Katterman v. Stitzer, supra, but to mistaken submissions to tbe jury of tbe guilt or innocence of tbe plaintiff as tbe issue to be determined in malicious prosecution.

Tbe judgment is affirmed.