probable cause, the court must so declare and direct a verdict for defendant. * * * ' In Taubman v. Schulte, 1931, 302 Pa. 170, 172, 153 A. 150, 151, the court said: 'Where, however, plaintiff's own testimony shows the existence of probable cause, this burden is lifted from defendant ( Bernar v. Dunlap, 94 Pa. 329, 331; Cooper v. Wm. R. Hart & Co., 147 Pa. 594, 598, 23 A. 833; Taylor v. American International Shipbuilding Corp., 275 Pa. 229, 231, 119 A. 130), and it becomes the duty of the court to enter a nonsuit or to direct a verdict for defendant ( Boyd v. Kerr, 216 Pa. 259, 65 A. 674).'
'That part of the evidence in the case before us which has any relevancy to the issue of probable cause is undisputed. As we have indicated, where the evidence is uncontroverted the question whether the defendant acted without probable cause is for the trial judge and not for the jury. Consequently the trial judge erred in submitting that question to the jury. The error would have been harmless, however, if the jury's finding that the defendant acted without probable cause was the finding which the trial judge should have made from the evidence. We shall, therefore, examine the evidence to determine whether it justifies a finding that Hardy acted without probable cause. The evidence is to the effect that when Hardy requested that the plaintiff be held he did so in reliance upon a positive identification by his fellow employee Berry, the only eye witness to the holdup. This was done in a proceeding before a magistrate at which Berry was a witness. That is all we have in the record upon this point. Bearing in mind that the burden of showing want of probable cause was upon the plaintiff, we have the narrow question whether establishment of the fact that Hardy furthered the prosecution of the plaintiff under these circumstances meets this burden.
'The law of Pennsylvania is that 'Representations of others may be sufficient foundation for it (probable cause), especially if made by those who have had opportunities for knowledge.' Taylor v. American I. Shipbuilding Corp., 1922, 275 Pa. 229, 231, 119 A. 130; Bernar v. Dunlap, 1880, 94 Pa. 329. Compare Bunting v. Goldstein, 1925, 283 Pa. 356, 129 A. 99; Smith v. Ege, 1866, 52 Pa. 419. The decision in Bernar v. Dunlap, supra, seems very close to the facts of the instant case. In an action for malicious prosecution, the trial judge had non-suited the plaintiff and he appealed. In affirming the judgment below the court in its per curiam opinion said: 'The express and distinct statement of Curtis * * * gave probable cause. Nothing is shown proving that the statement was not honestly made by Curtis, and in entire good faith believed by the defendant.' This is a direct ruling by the Pennsylvania Supreme Court that a plaintiff in a malicious prosecution suit growing out of a situation analogous to the present one is not entitled to recover if he fails to show that the witness upon whom the defendant relied in instituting the prosecution was not acting honestly and that the defendant did not in good faith believe his identification. As we have already pointed out, there was no evidence in the present case from which the jury might have inferred that Berry was not honest in his identification or that Hardy did not accept that identification in good faith.
'It is argued that it must be held as a matter of law that Berry's opportunity for knowledge under the circumstances here present was not sufficient to enable him in good faith to make any identification of the robbers and that since Hardy must have known this he must be held to have acted without probable cause. As we have already indicated, the plaintiff failed to sustain the burden of showing how much Hardy knew of Berry's means of knowledge. Unless he did have knowledge of the circumstances it would not affect the reasonableness of his reliance upon Berry's identification. 'Where the accuser bases his charge upon a third person's identification of the accused, it is immaterial that the informant acted unreasonably in making the identification.' Restatement of Torts, § 662, Comment g. * * *
'We conclude that there was no evidence in this case from which a fact situation might be found which would justify a ruling by the court that Hardy acted without probable cause. It should be remembered that the interests of society require that a citizen who performs his duty in assisting the public authorities to apprehend and prosecute criminals shall not be penalized for a mere error in so doing. As was said in Gilliford v. Windel, 1884, 108 Pa. 142, 145, 'As it is the duty of every citizen to aid in enforcing the criminal laws of the state against those by whom they are wilfully disobeyed, so is it the business of our courts of justice to see that the person thus undertaking to vindicate the law shall not suffer in consequence of such an attempt, even though it may have proved abortive.' See also introductory note to Chapter 29 -- Wrongful Prosecution of Criminal Proceedings -- of the Restatement of Torts.'
It should be observed that in Campbell v. Yellow Cab Co., supra, the uncontroverted evidence was to the effect that when Hardy requested that the plaintiff be held he did so in reliance upon a positive identification by his fellow employee, and that is all. In the instant case, the uncontroverted evidence is to the effect that the representative of the defendant, when he requested that the plaintiff be held had been informed by the police of Pittsburgh that Edna Frances Van Sant, the plaintiff here, had been identified from her photograph by seven shop girls who had accepted the fraudulent money orders, that he had also been informed that on February 6, 1941, the Allegheny County Grand Jury returned a true bill against Frances Van Sant as the person who passed one of the stolen money orders there, that he had also been informed by letter received from Inspector Monahan of Pittsburgh that the photograph of the plaintiff had been positively identified as that of the woman who passed some of the stolen money orders in Upper Darby, Pennsylvania, and that he had also been informed by a letter which he received from the Metropolitan Police Department of the District of Columbia that the plaintiff's husband had been arrested and charged with passing a forged check. It must be clear, therefore, that the facts shown by the evidence in the instant case present a stronger case for a directed verdict for the defendant than the facts shown by the evidence in the Campbell case.
I have quoted much of the language in the well reasoned opinion by Judge Maris for the reason that the important questions of law which have arisen in the instant case are clearly and ably discussed in that opinion.
I can reach no other conclusion than that the action of the trial court in directing the verdict for the defendant was proper, and that a refusal to do so when requested would have been error.
The motion of the plaintiff for a new trial is denied and a new trial is refused.
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