Miller v. Pennsylvania Railroad , 371 Pa. 308 ( 1952 )

Opinion by

Mr. Justice Allen M. Stearne,

Plaintiff, Clarence W. Miller, filed this complaint in trespass for malicious prosecution against defendant, Pennsylvania Railroad Company. The court below submitted the issue of want of probable cause to a jury which found for plaintiff in the sum of $4,780. That court, after dismissing defendant’s motions for judgment n.o.v. and for new trial, entered judgment on the verdict. Defendant appealed.

Submission of this case to the jury violated an ancient principle of law undeviatingly followed by this Court over many years, viz.: in a suit for malicious prosecution, where there is no conflict in the testimony, then even though the testimony be oral, want of probable cause is a question exclusively for the court.

The reason for the rule of law has been frequently stated; text-writers assert that courts unanimously agree that the interest of society in law enforcement is the more important of conflicting public policies. Typical excerpts from legal text-books follow: “. . . beginnings [of a tort action for abuse of legal procedure in criminal prosecutions] are somewhat obscure, but it was coming into use in Elizabeth’s reign and eventually became known as the action for malicious prosecution. Its progress was gradual, for it had to make its way between two competing principles, — the freedom of action that every man should have in bringing criminals to justice and the necessity for checking lying accusations of innocent people. For some time the Judges oscillated between apprehension of scaring off a just accuser and fear of encouraging a false one; but Savile v. Roberts (1698) put the action on a firm basis and indeed it is so much hedged about with restrictions and the burden of proof upon the plaintiff is so heavy that no honest prosecutor is ever likely to be deterred by it from doing his duty. It is notable how rarely an action is brought at all, much less a successful one, for this tort.” Winfield, Law of Tort (1948) p. 610.

“There is no other cause of action which is more carefully guarded. Unfortunate defendants who are wrongfully subjected to the judicial process must bear that risk except in the most extreme cases. When such a defendant in turn becomes plaintiff he has an uphill fight to maintain his suit. . . . Strict, uniform, and expert rulings are at a premium in these cases. Judges play a dominating part in handling them. ‘Questions of law’ and ‘questions of fact’ take on different hues here from that found in most other cases.” Green, Judge and Jury (1930) p. 338.

“Malicious prosecution is an action which runs counter to obvious policies of the law in favor of encouraging proceedings against those who are apparently guilty, and letting finished litigation remain undisturbed and unchallenged. It never has been regarded with any favor by the courts, and it is hedged with restrictions which make it very difficult to maintain.” Prosser on Torts (1941) p. 870.

The following facts are undisputed: for some time prior to June 29, 1947, defendant had discovered various thefts of merchandise from freight cars in its Harrisburg freight yards. Most of the thefts occurred during the 4 p.m. to midnight shift. On June 29, 1947, at about 10:35 p.m., Sergeant Frantz of the Railroad Police, saw a man dressed in khaki cross the freight yard, go to some high grass, pick up a package and place it in a pick-up truck. Because Frantz was on foot and about 500 feet away, he was unable to follow the truck. On the same night, at about 4:30 a.m., Frantz discovered that the seal on a freight car had been broken and that three blowtorches were missing from inside the car. The Railroad Police made no progress in solving the crimes until July 13, 1947, when Sergeant Frantz and another railroad policeman discovered that another railroad car had been entered and a quantity of T-shirts removed. A check was then made of the employes’ automobiles and the T-shirts were found in a car owned by Harry Kurtz, one of defendant’s employes. When Kurtz returned to his car, he was questioned and then taken to the office of the captain of the Railroad Police (Captain Monaghan). Kurtz admitted the theft of the T-shirts and also of the blowtorches. Kurtz stated that one McCall and another man whose name he did not remember but whom he described as about “five, feet eleven and 177 pounds” and who wore khaki clothes, were his accomplices. At the request of Captain Monaghan, a state policeman (Sergeant Funk) was assigned to the case. McCall was then questioned and placed under arrest. One of the missing blowtorches was discovered at McCall’s home. When questioned by Funk, McCall stated that he, Miller (plaintiff) and Kurtz (all were employes of defendant working together as a team of brakemen on the same evening shift) had taken the blowtorches from the railroad car. When McCall was taken to the Pennsylvania State Police barracks, he repeated his allegations that Miller and Kurtz also “took a torch from this car.” His statement, taken in the presence of Sergeants Funk (State Police) and Frantz (Bail-road Police), was reduced to writing and signed by McCall and later sworn to by him before a notary public.

Frantz obtained a search and body warrant for plaintiff and on the next day, July 14, 1947, accompanied by Sergeant Funk, went to Miller’s house. A search of the house failed to reveal a blowtorch of the type taken from the railroad car. Plaintiff was then taken to the police department of defendant and questioned by the two officers and Captain Monaghan. He was then told that Kurtz and McCall had accused him of stealing a blowtorch. What occurred thereafter is summarized by the court below: “After the questioning the plaintiff was lodged in the city jail by Sergeant Frantz until lunchtime, at which time he was taken to lunch by Frantz and Captain Monaghan. These railroad officers advised the plaintiff that they had made inquiries and knew the plaintiff had the torch. They took plaintiff to his home and told him to ‘go in and get the torch.’ He again denied the accusation and invited them to make another search, which they declined to do. Captain Monaghan then said ‘If you are innocent, fight it the whole way.’ When the plaintiff was being questioned by the- railroad police at the railroad offices. Captain' Monaghan told him -they were not interested in' him, but that ‘they would like to find out who else was taldng property off the railroad.’ They promised to ‘make it right with [plaintiff] if [he] could tell them.’ He denied any knowledge of the matter.”

Sergeant Frantz testified: “He was then placed in the Harrisburg City Jail for safekeeping. Captain Monaghan and myself then referred the case in person to Assistant District Attorney Keene of Dauphin County, Harrisburg, and presented him with the facts of the case. And Mr. Keene directed us to proceed with the prosecution of the three mentioned men.”

Plaintiff then was taken before Squire Richards in Harrisburg where he was placed under arrest and, upon the testimony of Frantz and Monaghan, was charged with burglary and larceny of a blowtorch.

Upon indictment by the Grand Jury, plaintiff was tried before Judge Weight without a jury on the charges of burglary and receiving stolen goods. Judge Weight found him not guilty. Plaintiff thereupon instituted this action for malicious prosecution.

This Court has recently considered the elements of an action for malicious prosecution. In Byers v. Ward, 368 Pa. 416, 84 A. 2d 307, it was stated: “The basis of an ex delicto action of malicious prosecution is for the recovery of damages which have proximately resulted to the person, property or reputation from a previous unsuccessful civil or criminal proceeding which was prosecuted without probable cause and with malice [citing cases]. Want of probable cause is an indispensable element: Simpson v. Montgomery Ward & Company, 354 Pa. 87 (and many cases cited therein), 46 A. 2d 674. And such want is in no sense dependent upon the guilt or innocence of the accused. Probable cause does- not depend on the state of the case in point of fact but upon the honest and reasonable belief of the party prosecuting [citing cases]. While the return of a true bill of indictment by the grand jury may. constitute prima facie evidence of probable cause, Graham v. Noble, 13 S. & R. 232, 234, the corollary of that legal principle is that an acquittal is not sufficient in itself to establish want of probable cause [citing cases].

“The question of want of probable cause is exclusively for the court. Where there is no conflict in the testimony, the court has no need for a finding of a jury.”

Plaintiff has the burden of proving want of probable cause: Simpson v. Montgomery Ward & Company, 354 Pa. 87, 46 A. 2d 674. Probable cause has been 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: Altman v. Standard Refrigerator Company, Inc., 315 Pa. 465, 173 A. 411. Plaintiff failed to sustain this burden. Plaintiff’s sole witness was the plaintiff himself. In substance Miller testified that he: (1) was previously of good repute; (2) was acquitted of the crime charged; (3) protested his innocence throughout; and (4) was not caught with the stolen goods. None of this testimony was disputed, and there was no issue of fact raised concerning the same. Plaintiff has produced no affirmative evidence that defendant lacked probable cause. Plaintiff does not make out a prima facie case simply by proving his arrest on a criminal charge and his acquittal: Simpson v. Montgomery Ward & Company, supra; Byers v. Ward, supra. The fact that Captain Monaghan stated that if plaintiff were innocent he should fight the charge the whole way does not aid the plaintiff. Such a statement does not indicate that Monaghan believed plaintiff innocent of the charges about to be made against him. He was merely éncouraging plaintiff not to be discouraged by the evidence against him if in fact he were' 'innocent. The circumstances known to Monaghan made Miller a logical suspéet. -

Plaintiff was the only person known to be at the scene of the crime other than the two who admitted guilt. While this is not conclusive proof of plaintiff’s guilt, it forms a reasonable basis for suspicion. Bad motive may not be inferred simply because a policeman asks two criminals whether the third man present (plaintiff) was also involved in the crime and believes them when they answer “yes”. The uncontroverted testimony is that the railroad police suspected the three brakemen who were on duty when the larceny occurred. Their suspicions concerning two of the three brakemen were confirmed. Even if the policemen were mistaken about the third brakeman (plaintiff), there was not a scintilla of testimony to show that this was not an honest error but was motivated by malice. The information given by Kurtz and McCall was substantiated by the known facts in many ways. Kurtz’s statement implicated McCall; this was corroborated by McCall’s confession. Kurtz’s description of the third thief fit plaintiff exactly. McCall’s statement, given independently, implicated Kurtz, and the railroad police already knew that this was true. To draw any adverse conclusion from the refusal of Kurtz to name Miller when he named McCall, on the theory that Kurtz had been friendly with Miller for a longer period and should have remembered Ms name more readily, overlooks the obvious possibility that Kurtz would be more anxious to shield his friend of longer standing.

After a diligent search of the entire record, we are unable to find any conflict respecting a single item of the testimony describing the events leading up to this prosecution. Upon such a record, it is impossible to sanction submission of the case to the jury. The true functions of court and jury in an action for malicious prosecution are stated in Restatement, Torts, §873, comment d: “. . . upon the issues of favorable termination and probable cause, tbe jury bas only tbe function of finding the circumstances under which the defendant acted. The court determines whether, under those circumstances, the termination was sufficiently favorable to the accused, and whether the defendant had or had not probable cause. 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.”

This comment was cited with approval in the exhaustive and learned opinion of Chief Justice Maxey in Simpson v. Montgomery Ward & Co., 354 Pa. 87, 46 A. 2d 674, and the same rule was reiterated in Byers v. Ward, 368 Pa. 416, 84 A. 2d 307. Those cases in turn followed ample precedent: Roessing v. Pittsburg Railways Company, 226 Pa. 523, 75 A. 724; McCoy v. Kalbach, 242 Pa. 123, 88 A. 879; Altman v. Standard Refrigerator Company, Inc., supra; Trautman v. Willock, 88 Pa. Superior Ct. 404.

It is highly significant that no attempt is made to show malice except by inference because of alleged lack of probable cause. It is true that such an inference of the existence of malice is permissible, but it has rarely been sufficient unaided by some showing of private motive; e.g., Smith, v. Walter, 125 Pa. 453, 17 A. 466, was a dispute between neighboring owners of rival business establishments; Taubman v. Schulte, Inc., 302 Pa. 170, 153 A. 150, a dispute between employer and employee, resulted in a directed verdict for defendant; and Hubert v. The Alta Life Insurance Company, 130 Pa. Superior Ct. 277, 196 A. 513, was an attempt to compel collection of a debt through use of criminal process. Plaintiff in the present case introduced no evidence at all to prove malice or to overcome the defendant’s evidence that this prosecution was part of a bona fide effort by the railroad police to protect the railroad property from further depredations by bringing the offenders to justice.

Appellee attributes great importance to the fact that the principal item of evidence against the plaintiff was the statement of a confessed accomplice. It is true that such an accusatory statement must be closely scrutinized, but “It must be remembered that there is no rule of law in this State which forbids a conviction on the uncorroborated testimony of an accomplice: [citing cases]”: Commonwealth v. Elliott, 292 Pa. 16, 22, 140 A. 537. See also Commonwealth v. Bruno, 316 Pa. 394, 402, 175 A. 518; Commonwealth v. Morrison, 157 Pa. Superior Ct. 366, 370, 43 A. 2d 400; Commonwealth v. Billingsley, 160 Pa. Superior Ct. 140, 146, 50 A. 2d 703. It would be obviously inconsistent to decide that the same evidence which would be sufficient to support a jury’s verdict of guilty is insufficient, as matter of law, to form the basis of such a charge.

It is to be noted that plaintiff was held for court by a justice of the peace and indicted by a grand jury. It is everywhere held that the actions of each of these judicial bodies are affirmative evidence of probable cause: Restatement, Torts, §§663(2) and 664(2). No suggestion has been made that either the justice of the peace or the grand jury was imposed upon in any way or that the evidence was distorted in presentation to them. What appeared to each of them to be probable cause for prosecution may well have appeared in the same light to the defendant railroad.

The judgment of the court below is reversed, and judgment entered for defendant non obstante veredicto.