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NECZYPOR v. JACOBS (04/13/60)


April 13, 1960


Appeal, No. 23, Oct. T., 1960, 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 affirmed; reargument refused April 29, 1960.


Irving R. Shull, with him Alfred I. Ginsburg, and Bernard L. Lemisch, for appellant.

Miles Warner, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Ervin

[ 192 Pa. Super. Page 182]


Plaintiff, Stephen S. Neczypor, brought this suit in trespass to recover damages for an alleged malicious prosecution. At the instance of Joseph Jacobs, a detective on the Philadelphia Police Force, who at the times hereinafter described was dressed in plain clothes, 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 $4,000.00. After denial of defendant's motions for judgment n.o.v. and for new trial, judgment was entered on the verdict. Defendant appealed.

This appeal is the second taken by the defendant from a judgment against him in this action. In the prior appeal, Neczypor v. Jacobs, 188 Pa. Superior Ct. 25, 146 A.2d 83, we reversed for trial error and granted a new trial. In that opinion we suggested to the court below use of the trial procedure advised by the Supreme Court in Simpson v. Montgomery Ward & Co., 354 Pa. 87, 96-99, 46 A.2d 674. Pursuant to that suggestion the court below submitted 11 interrogatories to the jury for special findings of fact.*fn1 The questions were

[ 192 Pa. Super. Page 183]

    answered adversely to the defendant. The court thereupon found that plaintiff's arrest had taken place without

[ 192 Pa. Super. Page 184]

    probable cause and entered judgment for the amount assessed by the jury.

The principal complaints of the appellant are: (1) that the interrogatories were inadequate as to form and content, and (2) that the court improperly delegated to the jury the finding as to probable cause.

A reading of the interrogatories is sufficient to defeat the first argument. The interrogatories expressly covered the issues of plaintiff's arrest and prosecution by defendant, his subsequent acquittal, whether the arrest and prosecution were maliciously motivated, whether defendant honestly and reasonably believed plaintiff to have operated his automobile erratically, to have acted belligerently, to have had an alcoholic breath, whether plaintiff, in fact, operated an automobile under the influence of intoxicating liquor and whether defendant honestly and reasonably believed that he was. The last interrogatory related to damages. The purpose of special interrogatories addressed to the jury in a cause of action for false arrest and malicious prosecution is to elicit the "basic facts" which are in issue: Simpson v. Montgomery Ward & Co., supra, at

[ 192 Pa. Super. Page 185]

    page 100. In the Simpson case our Supreme Court, at pages 100,101, said: "It would make for a just verdict in this case if the trial judge would submit to the jury questions for special findings as to certain basic facts. See Restatement, Torts, Sec. 673, comment d. Among those facts these should be included: (1) Did Mrs. Donna Yarger McCall honestly and reasonably believe that she 'saw the younger woman' (Alberta Simpson) 'Put a pair off the counter' (of defendant's shoes) 'into a shopping bag she had between her and the counter'? (2) Did Mrs. McCall report such an occurrence to the manager of the shoe department of the defendant's store, J. J. Burns? (3) Did Homer F. Bechtel, Assistant Manager of the defendant's store, on July 13, 1944, honestly and reasonably believe that he saw the plaintiff 'pick up a pair of shoes' in defendant's store, 'open a carrying bag and drop them in' and then 'just in a split second leave the department' and go to the front of the store? (4) When H. F. Bechtel, defendant's Assistant Manager, made the complaint against the plaintiff to C. F. Fend, Chief of Police of BUTLER, WAS HE ACTING ON AN HONEST AND REASONABLE BELIEF THAT HE SAW THE PLAINTIFF UNLAWFULLY TAKE INTO POSSESSION THE SHOES WHICH WERE THE PROPERTY OF Montgomery Ward and Company?" A comparison of the interrogatories here challenged for alleged inadequacy and incompleteness shows an exact parallel with those which the Supreme Court deemed proper in the Simpson case and we feel that they were entirely adequate.

The trial judge did not delegate to the jury the issue of probable cause. In his charge to the jury he said: "With reference to the element of probable cause, I charge you that the question of want of probable cause is exclusively for the Court to determine, because probable cause is a question of law. Upon the issue of probable cause, you, the jury, I repeat, have only the function of finding the circumstances under which the

[ 192 Pa. Super. Page 186]

    defendant in this case acted, prior to and at the time of the arrest of the plaintiff.

"You will have a right to determine the circumstances that led up to the arrest of the plaintiff. You will determine those circumstances, but what is probable cause is for the Court to determine.

"However, members of the jury, in order for the Court to determine the existence or nonexistence of probable cause, you must decide certain questions as to certain basic facts which are at issue in this case. I therefore shall submit to you a list of questions which you will answer when you retire to consider the case. These questions when answered by you are called special findings of fact. I shall now read them to you...." After the jury returned its findings on the interrogatories, the court said: "Upon the basis of the findings of the jury, I now find that there was want of probable cause." Appellant now complains of this action by the court below and argues that the court is obligated to make an independent finding, and not base it upon the special findings propounded to the jury. We believe that the practice followed by the judge in this case was entirely proper. In Byers v. Ward, 368 Pa. 416, 421, 422, 84 A.2d 307, the Court said: "The question of want of probable cause is exclusively for the court. Where there is no conflict in the testimony, the court has no need for a finding of a jury. Where, however, there is a conflict in the testimony as to what the circumstances were out of which the prosecution arose, there are two courses open to the trial judge (a) to direct the jury to render a special verdict, and upon those findings, the court, as matter of law, decides whether or not there exists a want of probable cause or (b) for the court to charge the jury in what circumstances, under the evidence, defendants did or did not have probable cause for initiating the proceedings: Simpson v. Montgomery Ward & Company, 354

[ 192 Pa. Super. Page ]

Page 187they have clearly stated that the question of want of probable cause, which would normally be for the determination of the jury, is one of law and must be determined by the court only. It is, however, still the law that an action for malicious prosecution can be maintained to recover damages resulting to the person, property or reputation of one party, from an unsuccessful criminal prosecution initiated by another without probable cause and with malice: Byers v. Ward, supra, at page 421.

Appellant also argues that the verdict of $4,000.00 is excessive. The special damages which the jury could properly consider were in the sum of $625.00. The plaintiff suffered the fear and humiliation incident to being arrested, fingerprinted and photographed as a member of the "rogues' gallery"; he was incarcerated for several hours during which time he was physically prevented from communicating with his waiting and anxious family; he was physically abused, being struck in the eye and cut; he was required to undergo the emotional distress incident to the criminal trial, together with the attendant risk of conviction; his reputation has been permanently injured and his eligibility for future employment adversely affected. The plaintiff had a clean record and had never been convicted of any crime. In this day, with the decreased purchasing power of the dollar being ever present, we do not believe that the verdict was so excessive as to shock the conscience of a judge.


Judgment affirmed.


Believing that the evidence conclusively establishes that the police officer had probable cause for initiating

[ 192 Pa. Super. Page 189]

    the proceedings, I would reverse and direct the entry of judgment n.o.v. for the defendant.

WATKINS and MONTGOMERY, JJ., join in this dissent.

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