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June 25, 1952


Appeal, No. 150, Jan. T., 1951, from judgment of Court of Common Pleas No. 3 of Philadelphia County, June T., 1949, No. 2059, in case of Clarence W. Miller v. Pennsylvania Railroad Company. Judgment reversed.


Theodore Voorhees, with him F. Hastings Griffin, Jr., Philip Price, and Barnes, Dechert, Price, Myers & Rhoads, for appellant.

Henry W. Balka, with him Edward J. Cooke, Jr., and Jesse N. Goldstein, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stearne

[ 371 Pa. Page 309]


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.

[ 371 Pa. Page 310]

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

[ 371 Pa. Page 311]

    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

[ 371 Pa. Page 312]

    the missing blowtorches was discovered at McCall's home. Whem 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 (Railroad 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 taking property off the railroad.' They promised

[ 371 Pa. Page 313]

    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 WRIGHT without a jury on the charges of burglary and receiving stolen goods. Judge WRIGHT 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 in 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 ...

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