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January 12, 1954


Appeal, No. 231, Jan. T., 1953, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1949, No. 4890, in case of John Roy Hugee v. The Pennsylvania Railroad Company. Judgment affirmed.


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

Joseph I. Levy, with him Samuel F. Pepper and Isadore Penn, for appellee.

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

Author: Stearne

[ 376 Pa. Page 287]


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 Hugee.

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 unconflicting 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 hatbox 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

[ 376 Pa. Page 288]

    and Found Department. Instead, he 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 was 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 cause as a matter of law.

[ 376 Pa. Page 289]

"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. ...

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