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Bencke v. Weltersbach

Decided: February 5, 1932.


On appeal from the Hudson County Court of Common pleas.

For the appellant, Atwood C. Wolf.

For the respondent, I. Faerber Goldenhorn.

Before Gummere, Chief Justice, and Justices Parker and Case.


The opinion of the court was delivered by

PARKER, J. This is a suit for malicious prosecution arising out of a complaint for grand larceny of certain drawing of machinery. The plaintiff recovered a verdict and judgment for $1,500. Defendant appeals and assigns twenty-one grounds of appeal, of which Numbers 1, 2, 3 and 12 allege error in refusing to nonsuit and to direct a verdict for defendant. The case

shows that there was a rule to show cause for a new trial, reserving exceptions generally, but the rule included as reason (b) that "the verdict in favor of the plaintiff Charles K. Bencke is against the evidence and against the weight of the evidence," and the rule discharging that rule to show cause recites this same reason as though argued in connection with another, that the verdict was excessive. It is of course settled that argument on weight of evidence in the trial court precludes consideration in the appellate court of refusals to take the case from the jury. From a typewritten paper annexed to one of the briefs of counsel we gather that they have undertaken to stipulate that "the said rule to show cause was addressed solely to the question of excessive damages," which is plainly not the fact; and that respondent "waives and abandons" the point that the questions raised on this appeal were raised on the rule to show cause. However, it is not for counsel to stipulate the appellate court into considering for the second time a matter of law raised by the rule to show cause. Hence we do not regard the points made by grounds 1, 2, 3 and 12 as properly before us. But if we are in error about this, it still appears that a claim for two weeks' salary was added by amendment, and was clearly for determination by the jury, so that a general motion to nonsuit or direct could not properly have been granted.

Five requests to charge were submitted by defendant: that is to say, they are entitled "request number 1," &c., but the first takes nearly two pages of the printed case, and the third takes fully two pages. All in all, they make up a rather complete charge from the standpoint of defendant, and the trial court was advised in writing that they are taken in large measure from a legal work on "Instructions to Juries." We have examined them, and think it sufficient to say that so far as an instruction on any point treated therein was requisite, the charge as delivered fully covered the requests. It may be well to say that there was no doubt whatever about the defendant having set in motion a criminal prosecution of the plaintiff, or about that prosecution having terminated favorably to him. Hence, it was unnecessary to instruct the

jury that those matters must be proved, they being admitted; and the court in charging properly laid stress on the elements of want of probable cause and malice. Where the requests deal with the questions of employment of plaintiff by defendant, and the right of a master to the product of the servant's work, they were also fully covered.

It appeared that defendant had consulted counsel before making a complaint, and the court instructed the jury in substance that if he had laid the case fully and fairly before counsel and acted on his advice, that would be a good and complete defense; but unless he told counsel the truth, and the whole truth, it would not. The argument now is that it appears without contradiction that the case was laid fully and truly before counsel. We have read defendant's testimony on this point, and all that appears is that defendant "asked for advice what to do, how to get the drawings back as I needed them * * * what I needed them for * * * that the drawings were my property * * * we had these checks with us [checks for plaintiff's wages] and we talked the thing very carefully over and he advised me to go and see the judge at the police court." It was at least for the jury to say whether the defendant had made the full disclosure required by the rule.

In discussing the elements of damage, the court alluded to the "humiliation" of plaintiff in being put under arrest, taken to the station house and put "in a cell, probably with common felons and common thieves," &c. It is urged that there is no evidence to support this comment. Plaintiff testified that he was arrested on a warrant for grand larceny, taken to the Oakland avenue police station, kept until ten forty-five P.M., then transferred in the police wagon to the Montgomery street station and kept there till eleven A.M., the next day, when he gave bail. It is common knowledge that persons accused of and held for crime in a police station are put in cells for safe keeping. The "probability" that he was ...

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