On appeal from a judgment in the Supreme Court.
For the plaintiff-respondent, Quinn & Doremus (John J. Quinn).
For the defendants-appellants, Drewen & Nugent (JOHN Drewen and Clifford I. Voorhees).
The opinion of the court was delivered by
CASE, J. The complaint grounded in a charge of malicious prosecution arising out of these circumstances: The Metropolitan Life Insurance Company by its agent, Vincent B. Smith, filed a charge against, and caused the arrest of, Joseph Dombroski for the alleged forgery of a check. A Monmouth County grand jury returned an indictment for forgery. Following trial in the Quarter Sessions there was a verdict of acquittal. This suit to recover damages for the alleged malicious prosecution resulted in a judgment for Dombroski against both defendants in the amount of $25,000, reduced on rule to $17,500. The judgment is before us on defendants' appeal.
Appellants' point one is that the court erred in denying their motion for directed verdict on the ground that there was probable cause for instituting the prosecution. That contention assumes that the weight of evidence on probable cause bore down in favor of the defendants. The state of the evidence is necessarily embraced within the refusal to direct a verdict upon the stated ground. Louis Schlesinger, Inc., v. Burstein Realty Co., 123 N.J.L. 190. The appellants are not in position to argue the weight of evidence on this appeal because they sued out and argued a rule to show cause why a new trial should not be granted and stated as a ground that the verdict was based on sympathy, bias, prejudice and passion, comprehended within which is the assumption that there was not credible evidence to sustain the verdict. Vide, State v. Karpowitz, 98 Id. 546, 459. In addition, the rule is that although the question of probable cause is passed upon by the court when there is no contradiction in the facts, it is left to the jury with instructions when there is contradiction. Vladar v. Klopman, 89 Id. 575, 578; Weinstein v. Klitch, 106 Id. 408. There was contradiction in the relevant proofs, and the court properly left the question to the jury. The rule to show cause why a new trial should not be granted contained this provision:
"It is further ordered that the granting of this rule to show cause shall not operate as a waiver of any of the objections or exceptions granted to said defendants, but that each
of said objections and exceptions is hereby expressly reserved to the defendants, for the purpose of taking an appeal after this court shall have filed its determination under this rule to show cause;" but neither that nor any other language inserted in such a rule can save to the prosecutor the benefit, for appeal, of an exception that goes to a point assigned and argued under the rule. The discharge of a rule makes res judicata every reason argued in support of it. Cleaves v. Yeskel, 104 Id. 497, or even merely assigned unless exscinded by court order. Cleary v. Camden, 119 Id. 387.
Appellants' second point is that the court erred in denying defendants' motion for a directed verdict on the ground that the conduct of the defendants throughout was pursuant to advice of counsel, properly sought and given. The point is within the application of the foregoing discussion on the weight of evidence and the effect of a rule involving it. We add that the proofs disclose a substantial dispute as to whether relevant and material facts within defendants' knowledge were presented to counsel in seeking his advice as to the laying of the complaint. Bennett v. Pillion, 105 N.J.L. 359. This required that the question should be left to the jury with instructions. Evans v. Jersey Central Power and Light Co., 119 Id. 88.
The third and fourth points are directed against portions of the court's charge which, as appellants allege, were equivalent to telling the jury that if they found that the criminal charge brought against the plaintiff by the defendants was false they might feel "* * * justified in drawing * * * an inference of want of probable cause and malice on the part of defendants." It was held in Vladar v. Klopman, supra:
"There was proof submitted by the plaintiff which showed that the charge of larceny made against her was false. When she rested her case, therefore, this proof was sufficient to justify an ...