
    John Langley, Respondent, v. East River Gas Company of Long Island City, Appellant.
    
      Malicious prosecution—malice inferable from want of pi'óbable cause.
    
    In an action for malicious prosecution, the jury may infer malice on the part of the defendant from the absence of probable cause for the prosecution, but are not bound to draw such an inference.
    Appeal oy the defendant, the East River Gas Company of Long Island City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 13th day of June, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      R. Burnham Moffat, for the appellant.
    
      Daniel Noble, for the respondent.
   Willard Bartlett, J.:

This is a suit for malicious prosecution. The plaintiff was the occupant of premises in Long Island City to which gas was furnished by the defendant. In January, 1897, the defendant’s chief engineer made a complaint against him before a justice of the peace, charging him with having violated the provisions of subdivision 1 of section 651 of the Penal Code, under which it is made a misdemeanor to connect any contrivance with a pipe used for supplying illuminating gas in such a manner as to supply such gas to any burner where it can be used without passing through the meter provided for registering the quantity consumed. Mr. Langley was arrested upon this charge, and after a hearing before the magistrate, upon which the complainant and two other employees of the defendant corporation were examined, the criminal prosecution was dismissed.

The East River Gas Company has not sought to evade responsibility for the action of its chief engineer in prosecuting this charge, but it insists that there was probable cause for instituting the prosecution, and that it acted without malice in the matter. The accusation was based upon the alleged discovery of a false connection in the gas piping in the cellar of the premises occupied by the plaintiff. In the latter part of December, 1896, according to the testimony of a foreman and a gastitter in the employ of the defendant, these two witnesses found this false connection, which had not been placed there by the East River Gas Company, so attached to the system of piping as to permit the burning of gas in various parts of the plaintiff’s building without passing through any of the meters which were provided to register the quantity consumed. The learned trial judge charged the jury that if such a connection actually was there at the time stated, then the defendant’s representative or agent acted upon probable cause in making the criminal charge, but if there was no such connection there, there was no probable cause for the accusation. The plaintiff himself positively denied that there had been any such false connection in his cellar, either at the time stated by the defendant’s witnesses or at any other time. It certainly was not there when the defendant’s witnesses again visited the premises after the criminal proceedings had been instituted, but, of course, it might have been removed after the complaint was made. At all events, there was a direct conflict of evidence as to whether it had ever been there at all or not, and the trial judge treated the question of the existence or absence of probable cause as dependent upon what the jury should find the fact to be in this respect. He was plainly right in so doing. The facts, being disputed, took the question of probable cause away from the court and made it a question for the jury. (Wass v. Stephens, 128 N. Y. 123.) As the jury found in favor of the plaintiff, they must have determined this issue adversely to the defendant. This involved the conclusion on their part that there never had been any such false connection of the piping on plaintiff’s premises as was testified to by the witnesses for the defendant.

It is earnestly insisted that the verdict is contrary to the evidence in this respect, but we are unable so to regard it. The most important fact tending to show the existence of the alleged false connection was that gas burned at certain jets in the plaintiff’s building after his meter was taken out. This was met, however, by evidence on the part of the plaintiff to the effect that another connection existed which sufficed to supply gas to these jets; and although in behalf of the defendant it is denied that this connection could have had the effect thus attributed to it, we cannot say that the explanation was so impossible or improbable as to require the jury to reject it.

It is necessary, however, for the plaintiff to establish malice on the part of the defendant, as well as want of probable cause, in making the criminal charge; and it is argued that in no event did the facts disclosed by the evidence warrant the jury in inferring the improper motive which must be proved in every action for malicious prosecution. The charge to the jury is criticised as not containing any clear statement that malice was a distinct and necessary element in the plaintiff’s case; and it is asserted that the learned judge declared in substance that facts sufficient to prove want of probable cause were necessarily sufficient to warrant a verdict for the plaintiff.

We do not think that the charge is justly subject to criticism in either respect. The learned judge told the jury that it was not enough to prove that the plaintiff had been arrested and discharged, but that he had to go further and show that the prosecution against him was without probable cause and malicious on the part of the company which prosecuted him.” Again he said, “ What you have to find before you can give a verdict for the plaintiff, is that this prosecution in the Justice’s Court was without probable cause, and from that lack of probable cause you may find malice, and in that way you make this case out to be a malicious prosecution, and until you do that, the plaintiff has no cause of action here at all.” No exception was taken to this or any other part of the charge. Nor was any request made for fuller instructions to the jury in regard to the element of malice as an essential ingredient in malicious prosecution. Under these circumstances the defendant should not be heard to complain that the trial judge was not sufficiently clear and definite in what he said to the jury on this subject. The law was stated by the judge with entire accuracy, and if counsel had desired any amplification of the statement it was his duty to ask for it.

In saying that from lack of probable cause the jury might find malice, the learned judge did not assert, as is assumed in the brief for the appellant, that facts sufficient to prove want of probable cause were necessarily sufficient to warrant a verdict for plaintiff. He merely stated the rule of law which is as well established as any rule in this State, that where want of probable cause is proved the jury are at liberty from that fact to infer that the prosecution was prompted by malice. (Heyne v. Blair, 62 N. Y. 19, 22.) But the jury were not bound to infer malice, nor did the court so intimate. (Jennings v. Davidson, 13 Hun, 393 ; Vanderbilt v. Mathis, 5 Duer, 304.) A precise and comprehensive definition of the malice which is necessary to sustain an action for malicious prosecution may be somewhat difficult to give, and it does not appear to have often been attempted either by judges or writers of text books. There was no request to define the term in the present case, and we may fairly assume that it was understood by the jury in the ordinary sense of personal spite or ill-will. If so, the jury were not misled, for, where a criminal prosecution is instituted without probable cause therefor, and is prompted by personal spite or ill-will, it would certainly be deemed malicious under any definition of malice.

The case of Brown v. Hawkes (2 Q. B. [1891] 718) is cited by counsel for the appellant in support of his contention that in no case is malice a legal presumption from the want of probable cause. It hardly goes to that length. There was an express finding by the jury in the case cited that the defendant honestly believed in the full charge which he laid before the magistrates, and it was held on appeal that, after so finding, the mere fact that there was no probable cause for the prosecution did not authorize the conclusion that the defendant acted maliciously. In other words, the finding of good faith overcame the inference which might otherwise be drawn from lack of probable cause. That the decision means no more than this is apparent from the language of Lord Esher (case cited, pp. 726, 727).

The judgment and order should De affirmed.

Judgment and order unanimously affirmed, with costs.  