Hugee v. Pennsylvania Railroad , 376 Pa. 286 ( 1954 )

Opinion by

Mr. Justice Allen M. Stearns,

In an action of trespass for malicious prosecution the defendant, the Pennsylvania Railroad Company, appeals from a judgment of $3,000 entered on a verdict for plaintiff, John Roy Ilugee.

Plaintiff was employed by defendant as cleaner for approximately seven years and against whom no charges of dishonesty had ever theretofore been made. On July 9, 1948, a police officer, an employe of defendant, arrested plaintiff on the charge of larceny. He was acquitted in the court of quarter sessions on January 18, 1949, and thereupon instituted the present action. The uneonfiicting and unimpeached testimony is concisely but comprehensively stated by the trial judge in his opinion overruling defendant's motion for judgment non obstante veredicto and for a new trial:

“The facts are that plaintiff found a hat box on the station platform and gathered it up. After clearing up a nearby mess with his broom, he went with broom and hatbox from the platform down the steps into a corridor or tunnel beneath the tracks that led to the station offices. At the end of this corridor he might have turned left and given over the box to the Lost and Found Department. Instead, lie turned right and went into a locker room where cleaning supplies were kept; his reason was that he thought he was not allowed in the Lost and Found Department with a dirty broom and that he wanted to change brooms or at least leave the dirty one behind. While he was about it he decided to eat a sandwich, not having had breakfast that day. He pushed the box on top of a locker and started to get the sandwich.

“Meanwhile, the detective, who ivas getting a shoeshine, saw plaintiff come down the corridor with the hatbox and turn right instead of left. He got up and followed, entered the locker room, and after searching and questioning the plaintiff, took him to the baggage room, found an address in the hatbox, and arrested him . .

In his charge (not printed in the paper books) the trial judge said: “. . . it is for the Court, that is, the Judge, to say whether or not there was reasonable and probable cause. But the Judge is to do that and do that finally only when the evidence is undisputed, that is, where the facts are admitted, or where they are so clearly established as to admit of only one inference. In that kind of case I would say from here, ‘There is’, or ‘There is not reasonable and probable cause’ and if I found that there was probable cause, that’s the end of it and I would direct you to find a verdict in favor of the defendant. In this case,- however, I shall not take that position — at least not at this time, because all of the-facts-.are not clearly established so as to admit of only one inference.. The facts are not all admitted. .Therefore, I need your help in telling me what you -think the facts add up to,- and when you" .have done that, then I will say at- the proper time -whether, or- not there was reasonable and probable causeáis a matter .of law, ..

“In helping you to do exactly what you must do— because this is a bit strict and technical — I have made out something here that is called Special Findings, two questions for you to answer. They are perfectly clear, but in order to get them into the record I am going to read them to you.”

The trial judge regards the undisputed testimony summarized by him as “equivocal” and not clearly established because of the existence of minor differences in the testimony and which did not have the slightest bearing upon the question of probable cause. They are whether or not (a) the articles in the hatbox were clean or dirty (b) the locker room had a lock and key (c) the officer knocked on the door before entering (d) was plaintiff eating a sandwich (e) the officer entered the locker room or the plaintiff came out (f) the location of the hatbox in the locker room. Obviously the answers to these questions were wholly collateral to the main issue, viz.: was there probable cause for the arrest.

In Miller v. Pennsylvania Railroad Company, 371 Pa. 308, 89 A. 2d 809, this Court had occasion to extensively explore the field of malicious prosecution. We held that where there is no conflict in the testimony want of probable cause is a question exclusively for the court. The philosophy of the doctrine was discussed and documented. We adopted the Restatement, Torts, sec. 673, comment d. Where there is no conflict in the testimony as to what the circumstances were, the court has no need for a finding of the jury. The jury is not called upon to act unless there is a conflict in the testimony which presents an issue of fact for its determination. The slight differences in the testimony over such minor and wholly immaterial details obviously were not of sufficient quality and importance to raise an issue of fact.

The basis of an action of malicious prosecution is want of probable cause and malice: Miller v. Pennsylvania Railroad Company, supra, p. 313. The plaintiff has the burden of proving want of probable cause. Probable cause is defined as “. . . a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent man in the same situation in believing that the party is guilty of the offense . . .” (p. 314).

We have examined this unconflicting and unimpeached testimony with care. The gathering up of the opened hatbox with its contents on the railroad platform was part of plaintiff’s duty. He was also required to clean tip, with his broom, the vomit spewed upon the platform. After performing these duties, apparently between 10:30 and 11:00 in the morning, plaintiff carried his dirty broom and hatbox from the platform down the steps and through the corridor or tunnel beneath the tracks. At the end of the tunnel, instead of turning to the left and handing the hatbox to those in charge of defendant’s Lost and Found Department, plaintiff turned to the right and entered a locker room where cleaning supplies were kept and placed the hatbox on top of a locker in full view. The police officer observed plaintiff thus entering the locker room with the hatbox, followed and arrested him, and charged plaintiff with larceny. Plaintiff unavailingly explained that the reason he had gone into the locker room first instead of turning in the hatbox at the Lost and Found Department was that he did not think he could take the dirty broom into that department, and therefore decided to wait until • he could wash it and also to take time out to eat a sandwich (not having eaten breakfast• that morning).

. .- These facts,- as. matter of law, were wholly- insufficient to establish probable cause ter warrant an .arrest for larceny. It was a most tenuous thread on which to hang a charge of theft because an employe with a theretofore unimpeachable record, in performing duties he was employed to do, turned to the right instead of the left, after making a journey with the hatbox in full view of passengers and employes in a busy railroad station and without the slightest concealment. He placed the box on top of a locker in plain view. He then gave the officer an account of why he had postponed turning it in to the Lost and Found Department. Under these circumstances the action of defendant’s police officer was with unwise haste and exhibited a lack of deliberation or care. The arrest and the handcuffing of plaintiff and carrying him off to defendant’s office for search and delivery to the city police were without sufficient justification.

Since we hold as matter of law that the arrest was without probable cause, the submission to the jury of that question as a matter of fact has resulted in harmless error because the jury by its verdict reached the same conclusion.

In order for plaintiff to recover he is required to prove not only lack of probable cause, but the existence of malice: Miller v. Pennsylvania Railroad Company, supra, p. 316. The question of the existence of malice is always a question of fact exclusively for the jury: 34 Am. Jur. 794, sec. 160, and the cases therein cited. Malice may be inferred from want of probable cause: Taubman v. Schulte, Inc., 302 Pa. 170, 153 A. 150; Curley v. Automobile Finance Company, 343 Pa. 280, 283, 23 A. 2d 48; Heisey v. Vansant, 126 Pa. Superior Ct. 373, 375, 190 A. 726; Hubert v. The Alta Life Insurance Company, 130 Pa. Superior Ct. 277, 196 A. 513. Legal malice is not limited to motives of hatred or ill will, but may consist of defendant’s reckless and oppressive disregard of plaintiff’s rights: 34 Am. Jur. 794, sec. 160; 54 C. J. S. Malicious Prosecution sec. 42, and the many cases therein cited.

The presumption of malice because of lack of probable cause was not overcome by the evidence of the defendant. The police officer acted with undue haste and on insufficient grounds. Judge Bok accurately said in his opinion, sustaining the verdict: “As for malice, which the jury expressly found, . . . [pjlaintiff had a good reputation after seven years employment. He was handcuffed and taken openly to headquarters, several miles away; there he was questioned for three hours and taken, with or without his permission, to the place where he lived. That place was searched for an hour, obviously not for the contents of the hatbox but just in case plaintiff had been stealing anything else, although the railroad had no other suspicions about him whatever. This pressure took place after the arrest, not before. Aside from the inference of malice that may be drawn from the lack of probable cause, if not rebutted (cf. the Miller and Simpson cases, supra), it is clear, reading through the jury’s eyes, that there was factual evidence of malice; the quick arrest, the public handcuffing, the long interrogation, the effort to get plaintiff’s written permission to search his house and then going without it, the search of the house for stolen property — both the public’s and the railroad’s — without any more to go on than the suspicion arising from the hatbox. This appears ample to support the verdict.”

The judgment is affirmed.