
    Jones v. MacConochie, Appellant.
    
      January 8, 1948:
    Argued October 10, 1947.
    Before Rhodes, P. J., Hirt, Reno, Dithrich,Ross, Arnold and Fine?i JJ.
    
      Alfred K. Hettinger, for appellant.,
    
      Martin H. Philip,,ior appellee.
   Opinion by

Rhodes, P; J.,

This is an appeal by the defendant .from a verdict and judgment against her in an action or --málicious prosecution. As. a. new trial must. be- granted; due to fundamental; error in the charge, of,-the-coürt*. the* only other assignment requiring consideration pertains to the. refusal of defendant’s motion, for judgment n. o. v; • : .

Viewed in a light most favorable, to plaintiff,.the. evidence showed the following facts: Defendant, who is the,aunt.of plaintiffs wife, lived in a house owned; by> her at 24.Factory Street, Slatington,.Pennsylvania-.-.Plaintiff* formerly a resident of ,the state of California^had. been living with his sister in the villaigé .of-Emerald, near Slatington. By mutual agreement' .plaintiff went to live in defendant’s house'on; December; 7,-1945.. The: next day Mrs. MacConochie-drove with friends to Florida where she remained until her return on March 16, 1946.

Plaintiff was to take care of the house and use its facilities‘during defendant’s absence; nothing was said about the length of plaintiff’s stay. It was understood, however, that plaintiff’s wife, their daughter and the daughter’s two children, who returned from California on December 16, 1945, would occupy defendant’s home with the plaintiff. Plaintiff’s son later joined the family, bringing with him a large Doberman dog.

A few weeks after defendant’s return from Florida friction developed between plaintiff’s family and defendant. Defendant, a woman then 77 years old, took her cooking utensils, packed them in boxes and removed them to the cellar. She locked part of the house and tried generally to make life miserable for plaintiff’s family so that they would leave.

On May 6, 1946, defendant had an attorney write a letter to plaintiff’s wife in which it was requested that the Jones family vacate within thirty days. Plaintiff was not able to obtain other quarters at once. Defendant then asked advice from three justices of the peace as to means of evicting the plaintiff and his family. One of these advised defendant on May 15, 1946, to “Watch your P’s and Q’s” and lock the door when the Jones family were all absent from the house. Defendant followed this advice and locked the door at eleven o’clock in the morning on May 17,1946. Plaintiff returned with his daughter at three o’clock that afternoon and asked defendant to open the door. Defendant refused and proceeded to fasten the windows' of the bedroom used by the daughter, whereupon plaintiff forced open the door and entered the house. He and his family continued to reside in defendant’s house and were living there at the time of the trial.

Defendant drove to the same justice of the peace who had advised her to bar the door and swore out two warrants, one charging plaintiff with forcible entry and detainer, tlie other charging assault and battery, the latter charge growing ont of a dispute over the use of an ironing board in one of the bedrooms a few days before. Plaintiff was arrested the following morning, May 18, 1946, at seven o’clock, by a constable who permitted plaintiff to dress and then took him before the justice at the latter’s home, where plaintiff remained for three quarters of an hour. The justice dismissed the assault and battery charge as only a scuffle, but he held defendant on the forcible entry charge and committed him to jail. The record of the justice did not show that bail had been set in any amount. Bail was finally posted in Allentown, and plaintiff was released after three hours’ imprisonment. The grand jury of Lehigh County ignored the bill charging forcible entry and detainer.

Plaintiff instituted the present action for malicious prosecution on July 12, 1946. The case was tried October 24, 1946. The trial resulted in a verdict for plaintiff of $1,000 compensatory damages, and $4,000 punitive damages. The latter was reduced by remittitur to $500. Defendant’s motions for judgment n. o. v. and for new trial were refused; judgment was entered on the verdict for $1,500.

Appellant’s motion for judgment n. o. v. was properly refused. There was no dispute as to the facts regarding the prosecution for forcible entry brought by appellant. The admitted facts on this criminal charge do not show probable cause, as a matter of law. On the contrary, they show want of probable cause, as a matter of law. Advice of an attorney sought in good faith and upon full disclosure is a defense. Stritmatter v. Nese et al., 347 Pa. 9, 19, 20, 31 A. 2d 510. Advice of a justice of the peace, however, affords no protection against an action, for malicious prosecution. Brobst v. Ruff, 100 Pa. 91; Werner v. Bowers, 94 Pa. Superior Ct. 110; King v. Lejko et al., 102 Pa. Superior Ct. 569, 571, 157 A. 334.

The charge of assault and battery, involved facts which were in dispute, and the court could not, as a matter of law, Fule that prohable causé existed for this prosecution. This Court said in Hubert v. Alta Life Insurance Co., 130 Pa. Superior Ct. 277, at page 279, 196 A. 513, at page 514: "It is- only where the facts-.are not in'dispute- and those ¡facts, .and the .reasonable inference's therefrom, amount to' probable 'cause that a. trial judge may.direct a verdict fbr a,defendant : Taylor v. American International Shipbuilding Corp., 275 Pa. 229, 231, 119 A. 130, and cases there cited.”

■ .Appellant’s fourth assignment of error: relating to the charge of. the. court must'be: sustained. The error was- fundamental. The trial judge charged, inter alia, as follows:.“Where a-charge is ignored,.that makes Out a -, prima facie case, that., is, it makes out a case at first blush on behalf of the plaintiff,.- showing that there was a lack .of probable cause, and thén the burden shifts to the defendant to show that:there was probable cause. Where.you find that an action Was brought without probable cause; ..you. would havfe the-right to infer, if you will, from .the bringing, of,.an action-without probable cause, that it. was ¡-brought with malice; -out off malice or.of .ill,will, .and so it becomes necessary for you to determine in this case whether or not the defendant has carried .her,-burden by,the weight or preponderance of the evidence;- the cases- having:been-dismissed, whether or not .she has shown to you that these-action's were not brought out of malice, and -that they, were- brought with probable of reasonable cause.-”- On this point the learned trial judge fell-into the. same:-error in his charge, as was committed, by the'trial judge in-, the case of Groda v. American Stores Co., 315 Pa. 484, 173 A. 419, where the -Supreme Court, =in reversing the judgment and ordering a,new:trial, announced¡-the laW. of- this- Commonwealth as.follows, (page 489 of 315 Pa., page 421 at 173 A.) -. “It has ¡sometimes been held , in this'State in fictions for malicious prosecution that proof that criminal proceedings against-the person who was the defendant in the-criminal case -terminated in. his ¡favor either by an acquittal or by the discharge' of the examining magistrate, was-in- itself evidence .of the want of probable, cause for the prosecution,- and from it the'existence of malice could be inferred' and the burden of proof was then cast upon the civil defendant to-prove the contemporaneous existence, of probable cause for'the prosecution he initiated. Such cases as have or seem to have supported this doctrine can no longer be considered- as expressing the law of this State and they áre now overruled to the extent that they support the doctrine herein repudiated. Neither an acquittal of. the defendant in a criminal prosecution, nor the ignoring of the bill against him by the grand jury, nor his discharge by the examining magistrate, constitutes proof of want of probable cause, or shifts the burden of proof to the defendant in the civil action.” . • -■

'As recently as Simpson v. Montgomery Ward & Co., 354 Pa. 87, 96, 46 A. 2d 674, 678, our Supreme Court stated: “In an action of malicious prosecution, plaintiff does not make oüt a-prima fácié case by proving only his arrest on a-criminal charge and'its termination in his favor. He'must also show'that ‘the defendant did not havé probable cause for initiating the proceedings’: Sec. 672c Restatement, Torts.”

The charge was also fundamentally erronéous in that the trial judge' left the quéstion of probable cause to the jury on the law and on the facts.. As to the forcible entry.prosecution, the trial judge charged:,“It wiil .be for you to determine, from the facts in the case .[which were not in dispute], whether or not Mrs. MaeConochje, at the time that she swore out the information, honestly believed that she kad a legal right to the . action which she took; whether or not an ordinarily.prudent person under such circumstances would have considered that he had probable cause to bring the action that was brought, whether she acted out of an: outraged sense of the propriety of someone breaking down the door of her home, or whether or not it was the scheme on her part to incarcerate Ralph Jones, so that she would obtain possession of the house.” Again, the trial judge submitted probable cause to the jury on the law and on the facts, as to both prosecutions, as follows: “If you find that this action was not brought out of malice, if it was brought with probable and reasonable cause, then that is the end of the case, then while it is unfortunate that Mr. Jones was arrested, he would still not have any right to damages at your hands, and in that case you would bring in a verdict for the defendant. If, on the other hand, you find that these prosecutions were brought out of malice, were brought without reasonable and probable cause, then, as I said to you in the first place, a person who has been so arrested is entitled to recover damages.”

Mr. Chief Justice Maxey made it clear in Simpson v. Montgomery Ward & Co., supra, 354 Pa. 87, pages 91 to 97, 46 A. 2d 674, that the existence or nonexistence of probable cause is a question in the final analysis not for the jury, but for the court, and that a trial judge commits fundamental error when he submits this basic question to the jury. In the present case the facts as to the arrest of plaintiff on the forcible entry charge were undisputed, and on these facts the court should have told the jury as a matter of law that appellant had no probable cause. In McCarthy v. De Armit, 99 Pa. 63, at page 69, Mr. Justice Trtjnkey said: “What facts and circumstances amount to probable cause is a question of law. Whether they exist in any particular case is a question of fact. Where the facts are in controversy the subject must be submitted to the jury, in which event it is the duty of the court to instruct them what facts will constitute probable cause, and submit to them only the question of such facts. This principle is well settled. If all the evidence is insufficient to establish probable cause the court shall so instruct the jury, for they are not at liberty to find'a fact without evidence; and if the admitted facts amount to probable cause, the court should direct a verdict for the defendant,.even if his malice were;clearly proved.” In Huckestein v. New York Life Insurance Co., 205 Pa. 27, 54 A. 461, a verdict for the plaintiff in a malicious prosecution action was affirmed, where .the court instructed the' jury that, on the admitted facts, the defendant, an insurance company, had no probable cause for prosecuting the plaintiff for obtaining,money by false pretenses; as plaintiff madé no .representations at all to the ‘defendant insurance company, but rather to a third party. The'Supreme Court stated (page 31.of 205 Pa., page.463- of 54 A.) : “The instruction therefore that the prosecution was without probable cause was clearly right, and it was the duty of the court to give it. The question of probable cause is one of law for the court, where the facts relied on to constitute it are admitted or established beyond controversy.”

We cannot agree with plaintiff’s argument that, since the jury found for him, the trial judge’s failure to instruct the jury that no probable' cause existed for the forcible entry prosecution is harmless error. The action in this case was based.on both criminal charges: (1) Forcible entry and detainer, and (2) assault and battery. The facts were disputed'as to the latter and it was the court’s duty to submit the factual question to the jury. Probable cause existed for the assault and battery charge only if defendant (appellant) honestly and reasonably belieyed that intentional violence, in some degree, had been inflicted upon her by plaintiff. Plaintiff’s further argument to the effect that there must be lack of malice with probable cause is without authoritative support. In this connection it is' sufficient to point out that without malice want of probable cause is wholly insufficient to sustain a charge of malicious prosecution (Simpson v. Montgomery Ward & Co., supra, 354 Pa. 87, 102, 46 A. 2d 674; McCarthy v. De Armit, supra, 99 Pa. 63, 70 ; Hubert v. Alta Life Insurance Co., supra, 130 Pa. Superior Ct. 277, 284, 196 A. 513), but if probable cause is shown it matters not whether the motive of the prosecutor be praiseworthy or malicious (Bryant v. Kuntz, 25 Pa. Superior Ct. 102, 106).

In returning the record for a new trial in this type of case, which admittedly presents difficulties to even the most careful trial judge, we direct the attention of the court below to the advice given by Mr. Chief Justice Maxey in Simpson v. Montgomery Ward & Co., supra, 354 Pa. 87, pages 96 and 97, 46 A. 2d 674, as to the exact manner in which probable cause, in so far as it is a factual question, should be submitted to the jury.

The judgment is reversed, and a new trial is awarded.  