
    DAVENPORT v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, Appellate Division, Fourth Department.
    March 20, 1912.)
    1. Malicious Prosecution (§ 18)—Actions—Probable Cause—Statements op Third Parties.
    A detective officer who procures the arrest and prosecution of a person for larceny on the sworn affidavit of a person, who claims to have personal knowledge of the guilt of the accused party, in the absence of any improper motive or malicious intent, has probable cause as a matter of law to believe the accused party guilty, although the affiant is himself a self-confessed thief, where there are no circumstances casting suspicion on the truth of the affidavit, and the detective has no other means of information.
    [Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. §§ 23, '24, 29-38; Dec. Dig. § 18.]
    2. Malicious Prosecution (§ 59*)—Actions—Evidence—Admissibility.
    In an action for malicious prosecution, where the person instigating the prosecution acted on the affidavit of a third person, it was error to exclude evidence tending to show that such affidavit, so far as it charged other larcenies, was, upon investigation, found to be correct.
    [Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. §§ 125-137; Dec. Dig. § 59.*]
    Appeal from Trial Term, Onondaga County.
    Action by William E. Davenport against the New York Central & Hudson River Railroad Company. From a judgment on a verdict for plaintiff and from an drder denying a motion to set aside the verdict, and for a new trial on exceptions, defendant appeals. Reversed, and new trial ordered.
    Argued before McEENNAN, P. J„ and SPRING, KRUSE, ROBSON, and FOOTE, JJ.
    Hiscock, Doheny, Williams & Cowie, for appellant.
    Frank E. Young, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexed
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   FOOTE, J.

The plaintiff has recovered a verdict of $400 for malicious prosecution. He was arrested on process issued by a justice of the peace upon the complaint of one Hatfield, who was employed by defendant as a detective officer at jts freightyards in the towns of De Witt and Manlius, near the city of Syracuse.

It is urged by defendant in support of this appeal that on the undisputed evidence defendant’s agent Hatfield, as matter of law, had probable cause for instituting the criminal prosecution against plaintiff. We think defendant is correct in this contention.

Hatfield had been employed by defendant in this freightyard for about 3y2 years and at Buffalo 3 years before that. He had two assistants under him. There had been numerous thefts from the freight cars located at defendant’s yards at De Witt, and it was Hatfield’s business to investigate and prosecute for these thefts, if he could discover who had stolen the property. Plaintiff was a brakeman employed in this yard. One Gilmore and Beam were also brakemen employed in the same yard. Early in May, 1910, Gilmore and Beam had been arrested, charged with thefts from the freight cars in this yard, and had acknowledged their guilt and given information to Hatfield as to other brakemen in the yard who had also been in the habit of stealing from the cars, and, among others, plaintiff, Davenport. On May 23, 1910, Hatfield, with Gilmore, went before Justice of the Peace Orris R. Evans in the town of De Witt, and Gilmore there made an affidavit in reference to his knowledge of plaintiff stealing property from defendant’s cars. Pie made a statement, and the justice took it down in writing, and Gilmore signed and swore to it as an affidavit. In this statement he said: That he had known Davenport for about four years. That about two years prior he saw Davenport get into a car loaded with merchandise in the fast freightyards of defendant in the town of Manlius, and, when he came out, he had two dozen oranges. After that he saw him coming from a car with two pieces of meat from the refrigerator car. They looked like pork loins.' That about a year ago he saw him coming out of a loaded car. the seal of which had been broken, with two pairs of men’s shoes and had them under his coat. About two weeks later he saw him coming from a loaded car, the seal of which had been broken, with two pairs of ladies’ slippers of good quality. Eight or nine months ago he saw him stand opposite a loaded car, and had in his possession three or four pairs of men’s working gloves, and he asked Gilmore if he wanted some, and Gilmore said, “No,” and Davenport said, “All right.” “About two weeks ago I saw him reach into a loaded car and get two or three rose bushes, and a quantity of seeds and bulbs.” After this affidavit was sworn to and on the same day, Hatfield made an affidavit before the same justice, charging plaintiff with stealing the two rose bushes and a quantity of bulbs and seeds of the value of $2, being the last items referred to in Gilmore’s affidavit. On these two affidavits the justice issued his warrant, plaintiff was sent for, pleaded not guilty, and was allowed to go on his own recognizance, and was afterward tried and acquitted. Hatfield had no personal acquaintance with plaintiff, and nothing appeared to indicate that either Hatfield or any one connected with defendant had any malice toward plaintiff or motive for seeking to injure him. Early in May, another brakeman, Beam, had been arrested and confessed to have stolen from defendant’s cars in’this same yard, and on the 6th of May he made a long affidavit reciting numerous larcenies known to him, and stated near the close of the affidavit that among the railroad men that he knew had stolen goods from the cars at De Witt yards were several conductors and bralcemen, whose names were given: “George Gilmore, a brakeman named Davenport and a brakeman named Doyle.” This affidavit Hatfield had in his possession. He had investigated a number of the cases, and had some of the persons arrested, and some had been convicted.

The evidence given by plaintiff upon the trial of the present case consisted of that of Hatfield to show that he was in the employ of defendant company, and his duties in that employment; that a few days before he caused plaintiff’s arrest he had procured a search warrant and searched plaintiff’s house, and had found certain cushions, lanterns, and torpedoes which appeared to be railroad property, but not known to him with certainty to be railroad property, and claimed by plaintiff’s wife at the time the search was made to belong to parties residing at her house', or to be rightfully in their possession; next, the evidence of the justice, Evans, who produced his docket, and testified that plaintiff was arraigned and tried before him with a jury, and that the jury brought in a verdict of not guilty, and that defendant was acquitted and discharged; next, the evidence of plaintiff himself, to show his employment with defendant and its duration, his arrest, that he had never stolen anything from defendant’s cars, that he had some rose bushes in his yard, that the property found in his house at the time the search was made was not stolen property, that he knew Gilmore, and did not know Hatfield, that he worked as a brakeman on the road, running on freight trains, and then worked as a brakeman in the yard about five years, that about May 9th he had set out with his wife in his yard some rose bushes which he had purchased from a nursery firm of Geneva; next, the deposition of plaintiff’s wife, who was ill, to show the circumstances of the search of her house by Hatfield and information which she gave Hatfield at the time in respect to the several articles found, to the effect that they were not stolen property. During the cross-examination of Hatfield by defendant’s counsel the facts were brought out in reference to the information which Hatfield had received from Beam and Gilmore, and that he believed these statements, and acted in good faith and without malice in causing plaintiff’s arrest. The two affidavits were received in evidence on this cross-examination, and defendant’s counsel went fully into the examination of this witness in behalf of defendant. Plaintiff gave no other testimony, and, after he had rested, defendant recalled the justice, Evans, who testified to the circumstances of his taking Gilmore’s affidavit. This is substantially all the testimony upon the trial. Plaintiff offered no evidence as to what took place upon his trial before the justice, and it did not appear whether Gilmore was called as a witness or what other witnesses gave testimony.

For aught that appears in this record, plaintiff may have been acquitted on the ground that he was prosecuted in the wrong town, and not on the merits, as plaintiff’s counsel now points out that part of this freightyard was in the town of Manlius and part in the town of De Witt, and that Hatfield testified on this trial that the yard where this car that the rose bushes were stolen from was located in the town of Manlius. In the absence of evidence of some improper motive or malicious intent, we think it should be entirely safe for a detective officer to procure the arrest and prosecution of an indivdiual in reliance upon the sworn testimony of a person who claims to have personal knowledge of the guilt of the accused party. In most cases which have come before the courts, the information which was acted upon in starting prosecutions was not in the form of an affidavit or given under oath.

There was nothing in the evidence to show that Hatfield had, or should have had, suspicion of the truth of the facts contained in Gilmore’s affidavit, nor did it appear that Hatfield had other means of information at hand, or that good faith required him to seek for further information, nor is it suggested that he.could have made further investigation, except to go to the plaintiff himself and ask him if he was guilty. This we do not think he was called upon to do. It is true that the two persons from whom Hatfield received his information of plaintiff’s supposed guilt had themselves confessed stealing property from defendant’s cars, and from this circumstance it is urged that Hatfield should not have considered himself entitled to rely upon any information which they gave concerning others. No doubt he was «called upon to bear in mind the fact that his informants themselves were confessed thieves. The fact that they were such, however, placed them in a position to have knowledge of the guilt of others, and, in the absence of any reason for doubting their story, we think the fact that they were in a position to have knowledge of the facts entitled Hatfield to give credence to their statements, to the extent of accepting them as probably correct and acting accordingly.

Public policy requires that a person having information which satisfies him that another person has committed a crime should be free to institute a prosecution therefor, where there is no ulterior motive, without fear of subjecting himself to personal liability in damages in case the prosecution fails, and especially should this be true in the case of public officers, or persons who by their employment are charged with a duty in respect to the enforcement of the criminal law. We think within the rule laid down in Kutner v. Fargo, 34 App. Div. 317, 54 N. Y. Supp. 332, Anderson v. How, 116 N. Y. 336, 22 N. E. 695, and Rawson v. Leggett, 184 N. Y. 504, 77 N. E. 662, it must be held as matter of law that on the evidence given at the trial in this case Hatfield had reasonable probable cause for instituting the criminal prosecution against defendant.

We are also of opinion that the learned trial court was in error in refusing to permit Hatfield as a witness to testify as to the investigation he made in reference to the information he received from Gilmore as to other larcenies in this freightyard and the result of such investigation, and that defendant’s exceptions to such exclusion were well taken. The principal question in the case was as to whether Hatfield was justified in acting upon the information he received from Gilmore in reference to plaintiff’s supposed guilt of the crime of petit larceny. He had at the same time received information of the guilt of other persons of similar larcenies at the same place. We must assume, if he had been permitted to answer these questions, it would have appeared that he investigated Gilmore’s information as to these other larcenies, and found it to be correct. If so, the evidence would have been competent and persuasive in justification of his conduct in accepting and acting upon Gilmore’s information as to plaintiff.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to defendant to abide the event. All concur; ROBSON, J., in result.  