On appeal from the Monmouth County Circuit Court.
For the appellants, Autenrieth & Wortendyke (Reynier J. Wortendyke, Jr., of counsel).
For the respondent, Harry Sagotsky (Theodore D. Parsons, of counsel).
The opinion of the court was delivered by
PERSKIE, J. This is an action for malicious prosecution. Appellants, who were the defendants below, appeal from a judgment of $3,000 plus $106.70 costs, based upon a jury verdict in favor of respondent, who was the plaintiff below. The determinative issue is whether evidence of reasonable or probable cause conclusively appeared. The issue is raised and argued here upon the refusal of the learned trial judge to grant motions to nonsuit, to direct a verdict, and upon exceptions to his charge.
Plaintiff's original complaint charged defendants with malicious prosecution, false imprisonment, libel and slander, but by consent of counsel all counts except those charging malicious prosecution were stricken.
The voluminous record discloses that plaintiff was a boarder in an apartment house leased by a Mrs. Shropshire, at 410 Langford street, in the city of Asbury Park, New Jersey. On the 29th day of August, 1934, about a year after plaintiff moved into the apartment, he was charged by Flake, an investigator employed by the defendant corporation, with stealing gas and electricity from the wires and lines belonging to said defendant, Jersey Central Power and Light Company. Plaintiff was indicted, and tried upon the charges. The trial judge directed a verdict of not guilty upon the charge of stealing the gas, and the jury returned a verdict of not guilty upon the charge of stealing the electricity. Thereupon, plaintiff commenced and prosecuted the instant suit.
We are told that the proofs now before us are substantially the same as those in the aforementioned criminal proceedings. The proofs on the record submitted show that the gas and electric connections to the apartment in question had been disconnected prior to the plaintiff's occupancy thereof.
If further appears that other tenants of the building complained to the janitor both as to an odor of gas allegedly emanating from the Shropshire apartment, and as to the use of electricity therein. Defendant company made several inspections. They were fruitless. Finally, Flake was assigned to the case and he, together with fire department officials, on August 29th, 1934, again inspected the apartment. They found a gas stove, the burners of which were apparently warm; a rubber hose between the stove and the service line; and a fine electric wire near a window in the apartment, close to the location of the feeding lines of the defendant company. At the time of the inspection neither the rubber hose nor the wire was attached so that gas or electricity would flow into the apartment. Plaintiff, of course, denied all charges of wrongdoing.
Subsequently, Mrs. Shropshire, with whom plaintiff boarded, made a statement accusing him of devising the scheme of connecting the hose and wires to the end of stealing defendant's gas and electricity. Flake then went to the company's attorney, who, though reluctant to rely upon the statement of Mrs. Shropshire, an apparent conspirator, drew the complaint upon which the plaintiff was indicted. There is a conflict between the testimony of the attorney and Flake as to whether the latter told the former of the previous fruitless inspections, and the failure to find any actual connections. There is evidence that Flake threatened "to get" the plaintiff; that he told the latter's wife, from whom plaintiff was judicially separated, that plaintiff was dishonorably discharged from the army when the contrary was true; and that plaintiff planned to go to California with Mrs. Shropshire. At the close of plaintiff's case a motion for a nonsuit was made and denied; at the close of the entire case the motion to direct a verdict was also denied. The basis upon which these motions were made to rest was that there was no conflicting evidence as to reasonable or probable cause and thus no jury question was present.
First: Did the evidence indisputably disclose reasonable or probable cause for the making of the criminal complaint against plaintiff? We think not. [119 NJL Page 91] It is well settled that the fundamental grounds upon which an action for malicious prosecution rests, are that it was instituted against plaintiff without reasonable or probable cause, that the defendant was actuated by a malicious motive in making the charge, and that it has ended in plaintiff's favor. The proofs must sustain all of those grounds or plaintiff's suit must fail. Weisner v. Hansen, 81 N.J.L. 601; 80 A. 435; Vladar v. Klopman, 89 N.J.L. 575; 99 A. 330. See 65 A.L.R. 225. But when the question of the existence or non-existence of probable cause depends partly upon undisputed facts, and partly upon facts which are in dispute and which must be determined from the evidence in the case, the question is not one of law to be decided by the court, but one of fact to be decided by the jury under proper instructions. Weisner v. Hansen, supra; State v. Newman, 95 N.J.L. 280; 113 A. 220 (S.C.); Dalton v. Godfrey, 97 N.J.L. 455; 117 A. 635; Bennett v. Pillion, 105 N.J.L. 359; 144 A. 601; Weinstein v. Klitch, 106 N.J.L. 408, 411; 146 A. 219; Evanyke v. Electric Ferries Co., 106 N.J.L. 387; 150 A. 397. It is only when the facts are not controverted that the question of probable cause is one of law, to be determined by the court and not the jury. Vladar v. Klopman, supra; MacLaughlin v. Lehigh Valley Railroad Co., 93 N.J.L. 263; 108 A. 309 (S.C.); Colgan v. Sullivan, 94 N.J.L. 201; 109 A. 568; Greenberg v. Rose, 98 N.J.L. 881; 121 A. 616. In the case at bar, the evidence as to reasonable or probable cause clearly presents a disputable question. There is, on the one hand, the incriminating statement of Mrs. Shropshire, a fellow conspirator, who was neither produced as ...