Appeal, No. 408, Oct. T., 1958, from judgment of Court of Common Pleas No. 1 of Philadelphia County, March T., 1956, No. 2561, in case of Stephen S. Neczypor v. Joseph Jacobs. Judgment reversed.
Irving R. Shull, with him Alfred I. Ginsburg, and Bernard L. Lemisch, for appellant.
Miles Warner, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 188 Pa. Super. Page 27]
Plaintiff, Stephen S. Neczypor, brought this suit in trespass to recover damages for an alleged malicious prosecution. At the instance of defendant, Joseph Jacobs, a detective on the Philadelphia police force, plaintiff was arrested and indicted on a charge of operating an automobile while under the influence of intoxicating liquor. Plaintiff was acquitted of the criminal charge. The jury in the present action returned a verdict in his favor in the sum of $1,500.00. After the denial of defendant's motions for judgment n.o.v. and a new trial, judgment was entered on the verdict. Defendant appealed.
The appellant's principal objection is addressed to that part of the charge wherein the court said that Dr. Maser's report had no bearing at all on the question of the probable cause for the original arrest, which was previous to the examination, just as the acquittal had no bearing one way or the other.
On June 4, 1955, shortly after 4:00 p.m., plaintiff and defendant were operating automobiles north on Fifth Street near Girard Avenue in the City of Philadelphia. There was a slight contact or near contact between their cars, as a result of which plaintiff was arrested and charged with operating an automobile while under the influence of intoxicating liquor. He was taken to a police station and was examined by Dr. Maser, a police surgeon, who subsequently moved away
[ 188 Pa. Super. Page 28]
and could not be located at the time of the present trial. His examination was made at 6:45 p.m. and he certified that the plaintiff "is under the influence of intoxicating liquor, and at this time is not able to properly operate a motor vehicle. ..." His written report was received in evidence in the present case and was sent out with the jury.
In its opinion the court said: "It is true that this report was relevant to the issue of whether plaintiff was guilty or innocent of the charge, and guilt or innocence might have been made an issue in this case. See Restatement, Torts, Section 657, comment a (1938). However, defendant did not request the court to charge on this point and the trial was conducted on the theory that the sole issue was the existence of probable cause. In the course of its charge, the court several times stated that probable cause was the only issue before the jury. If defendant wanted the question of guilt or innocence submitted to the jury he should have spoken up. He may not introduce a new theory into the case after the jury has rendered its verdict." We feel that it was fundamental error to remove the issue of guilt from the trial. This was an action in trespass and the defendant, under the law of this Commonwealth, was not obliged to file an answer to the plaintiff's complaint in order to raise basic issues. The plaintiff had the burden of proving the following: (a) that the defendant initiated the criminal proceedings against him; (b) that the proceedings were terminated in his favor; (c) that the defendant did not have probable ...