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Shoemaker v. Shoemaker

January 30, 1951


McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.


[11 NJSuper Page 473] The defendant, George Shoemaker, on June 6, 1949, swore to a complaint

before the Magistrate of Raritan Township charging that plaintiff on June 3, 1949, "did make threats and was abusive" in violation of the Disorderly Persons Act and a township ordinance.

A warrant issued upon which plaintiff was arrested and failed for four days. The hearing on June 30 before the magistrate resulted in the dismissal of the complaint for insufficient evidence. The plaintiff thereupon instituted this action in Middlesex County Court and obtained a jury verdict upon a count for malicious prosecution. Defendant appeals from the consequent judgment.

The parties and the trial court dealt with the criminal charge as growing out of an incident which occurred, not on June 3, 1949, as stated in the criminal complaint, but on Sunday, June 5, 1949. The defendant's evidence was that he swore out the complaint after visiting the magistrate with his seven-year-old son and having the child tell the magistrate something not disclosed in the record. The plaintiff's evidence below was that the child on that Sunday beat plaintiff's pet pigeons with a stick and plaintiff told him to go away. Plaintiff expressly denied he had threatened or abused the child. The defendant and the child were the only witnesses at the magistrate's hearing. There is, however, no transcript of their testimony in this record. It further appears the magistrate had the benefit of a psychiatrist's report concerning plaintiff, which was also put in evidence below and which was prepared after an examination of plaintiff requested by plaintiff's attorney.

The fundamental grounds upon which this action for malicious prosecution was based were that the plaintiff was accused without reasonable or probable cause, that the defendant was actuated by a malicious motive in making the charge, and that the proceeding has terminated in plaintiff's favor. Unless the evidence in the case sufficiently establishes the existence of all three of these grounds, the plaintiff's suit must fail. Evans v. Jersey Central Power & Light Company , 119 N.J.L. 88 (E. & A. 1937); Little v. Little , 4 N.J. Super. 352 (App. Div. 1949).

The principal ground of appeal is that the trial court should have granted the defendant's motion for judgment made at the close of the testimony because, defendant contends, plaintiff's proofs did not sustain the burden upon him to show want of probable cause and, alternatively, that defendant's uncontroverted proofs demonstrated that the defendant had reasonable cause for the charge.

Where the question whether or not defendant had reasonable or probable cause for initiating the proceeding against the plaintiff depends, in part, at least, upon the facts the existence of which are in dispute, it is the function of the jury to settle those facts and upon doing so, to determine on the whole case whether or not reasonable or probable cause has been shown, such determination being based upon proper instructions from the court. Dalton v. Godfrey , 97 N.J.L. 455 (E. & A. 1922). But where the facts are not controverted, the question of reasonable or probable cause is one of law to be determined by the court and its submission to the jury is error. Vladar v. Klopman , 89 N.J.L. 575 (E. & A. 1916).

Whether in an action for malicious prosecution the evidence presents a jury question on this issue or a question for determination by the trial judge is an essential consideration upon trial. The action is not favored in the law, since public policy encourages the exposure of crime, which a recovery against one initiating the proceeding obviously tends to discourage. Chief Justice Gummere said in the Vladar case (at pp. 579-580):

"* * * It is true that, ordinarily, where a fact is proved which raises a presumption of liability on the part of the defendant, and other facts are put in evidence which tend to overthrow that presumption, a question is presented for the determination of the jury rather than of the court. But actions for malicious prosecution have always been differentiated by the courts, so far as this special feature of litigation is concerned. The rule which makes the existence or non-existence of probable cause, when the facts are not in dispute, a matter to be determined by the court, is probably the outgrowth of of a public policy, the purpose of which was to encourage criminal prosecutions at the instance of private citizens, by making them certain

that they might safely intervene to put in motion the machinery of the criminal law against apparent violators of its provisions, without being liable to be mulcted in damages, in case the prosecution should fail through lack of sufficient evidence or, perhaps, through the vagaries of the trial juries of earlier days. But, whatever may be its foundation, and whether it be logical or ...

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