Abraham J. Levinson, Philadelphia, for appellant.
H. Jerome Jaspan, Philadelphia, Harry R. Back, Philadelphia, for appellee.
Before Rhodes, P. J., and Dithrich, Ross, Arnold and Fine, JJ.
[ 166 Pa. Super. Page 442]
This is an action in trespass for malicious prosecution, which arose out of an unusual set of circumstances. The jury returned a verdict for plaintiff. Defendant's
[ 166 Pa. Super. Page 443]
motions for new trial and judgment n. o. v. were refused. From the judgment entered on the verdict defendant has appealed.
There was a conflict in the testimony as to the circumstances under which defendant acted and out of which the prosecution of plaintiff arose. Consequently, there is no merit in defendant's contention on this appeal that his motion for judgment n. o. v. must be granted on the ground that the existence of probable cause should have been declared as a matter of law. It is only where the facts are not in dispute and those facts, and the reasonable inferences therefrom, amount to probable cause that a trial judge may direct a verdict for defendant. Hubert v. Alta Life Insurance Co., 130 Pa. Super. 277, 279, 196 A. 513; Simpson v. Montgomery Ward & Company, 165 Pa. Super. 408, 415, 68 A.2d 442.
Plaintiff's evidence was sufficient to establish these facts. Plaintiff, a policeman, was assigned to duty at Seventeenth and Butler Streets, in the City of Philadelphia, on the evening of September 23, 1947. Defendant's tap room was located at a corner of the intersection of those streets. At about 10:30 that evening, plaintiff observed two patrons mistreating or attacking defendant in his tap room. Upon defendant's request plaintiff entered the tap room, arrested the two young men who were creating the disturbance, summoned a police car, and took them to the police station at Twenty-second Street and Hunting Park Avenue. Plaintiff charged them with drunkenness and disorderly conduct. Defendant was then requested by plaintiff to come to the station house to sign the registry as prosecutor. Thereafter plaintiff overheard defendant ask the acting sergeant what charges had been made against the two men, and, upon being told that they were charged with drunkenness and disorderly conduct, direct the sergeant to limit the charge to disorderly conduct. At the magistrate's
[ 166 Pa. Super. Page 444]
hearing the next day, where plaintiff and defendant both testified, the magistrate imposed a sentence of ten days' imprisonment; but both patrons were later discharged by the magistrate at defendant's request. As plaintiff and defendant returned the night of the arrests from the police station to defendant's tap room, in the police car, defendant handed plaintiff a dollar, which plaintiff then turned over to the other officers in the car, stating it was for driving defendant over to the station house. The following night, September 24, 1947, defendant offered plaintiff another dollar, in front of the tap room, stating 'You gave the other dollar to the red car'; but plaintiff refused to take the money. On September 25, 1947, plaintiff swore out a warrant for the arrest of defendant for maintaining a disorderly tap room and for obstructing justice. The affidavit recited briefly the incident of September 23d at defendant's tap room involving the two patrons; that defendant had the charge of drunkenness eliminated; that he procured the discharge of the patrons; and that he had attempted to give plaintiff two dollars which plaintiff had refused. Plaintiff personally arrested defendant, called a police car, and sent him to the police station to Twenty-second Street and Hunting Park Avenue about 4:30 p. m. on the day the warrant was issued. Plaintiff was called to the police station as the prosecutor about an hour later. Finding that defendant had not been 'slated,' plaintiff 'got a hold of him' and said, 'Come on up to the window and get slated,' Whereupon the ...