On appeal from the Clifton District Court.
For the plaintiff-appellee, Hammer & Hammer (Henry Hammer and Joseph Grossman, of counsel).
For the defendant-appellant, Heyman Zimel (Abraham Brenman, of counsel).
Before Brogan, Chief Justice, and Justice Heher.
This is the defendant's appeal from a judgment recovered against him in the Clifton District Court in an action for malicious prosecution.
Three elements must be present to justify a verdict in a civil action based on a malicious prosecution -- (a) successful termination of the criminal prosecution in favor of the accused; (b) absence of probable cause for the institution
of the criminal proceedings; (c) malice as a motive for bringing the criminal proceedings. The first essential was present in this case. But we do not find, from an examination of the facts in the case as settled by the learned trial judge, that there was lack of probable cause; and on the question of malice, which the trial court found to have existed, and which fact determination is not reviewable here on appeal, we would have found to the contrary on the facts as set out by the court below.
The circumstances which gave rise to the criminal complaint made by the defendant, Vroom, against the plaintiff in this cause, Prostick, arose out of the purchase of a wrist watch. The watch was purchased by the defendant's wife for their son and the price paid was $14. Mrs. Vroom testified that the plaintiff in this cause, a jeweler, sold the watch to her as a Bulova watch priced at $37.50 which he said he could sell her for $14 since "it was the last of a lot." This purchase was made on April 15th, 1939. The defendant's son, for whom the watch was intended, brought the watch back to Mr. Prostick six months after the purchase in order to have repairs made without charge under the guarantee which accompanied the purchase. The jeweler found that the watch had sand in it and refused to repair it unless he was paid for same. The son took the watch to the Bulova Watch Company and that concern, after inspection, advised that the "movement" was their make, that is, a Bulova, but that it was manufactured in 1936; that "the dial is a spurious one, the name Bulova having been forged thereon;" and that "the case is not part of the original equipment." At the time the watch was purchased the jeweler's card which was given to the purchaser contained this writing: "April 15, 1939 -- Bulova Strap Watch -- Clipper -- One year's service free -- H.P." (Harry Prostick.)
Upon receipt of this letter from the watch manufacturer, the son told the facts to his father, namely, that the jeweler refused to repair the watch; that he had taken up the matter with the Bulova Watch Company; and that he had received a letter from that company which he turned over to his father. The father went to the office of the Prosecutor of the Pleas
in Passaic County, showed the letter to the "man in charge" who, he said, "looked up the law in his presence and stated that jewelers are not allowed to sell second-hand watches unless they are so advertised." Mr. Vroom further said ...