Price, Schettino and Gaulkin. The opinion of the court was delivered by Schettino, J.A.D.
Appeal is taken from a district court judgment entered by a judge sitting without a jury.
Immediately after oral argument we pointed out that the record was deficient in that there was no compliance with R.R. 7:16-3 and we were therefore without authentic and specific expressions of the trial court's essentially relevant findings of fact and conclusions of law. Pursuant to our direction, and by December 2, 1958, R.R. 7:16-3 was complied with and counsel for both sides filed supplemental memoranda of law. The basic arguments therein are a reiteration of the arguments stated orally and in the original briefs. We therefore required no additional oral argument.
The judgment here involved arises out of a malicious prosecution complaint resulting from an allegedly unjustifiable criminal charge of atrocious assault and battery made against plaintiff by defendant, Louise Kuenstler. Defendant
Frederick Kuenstler, Jr., is the son of Louise Kuenstler. Plaintiff instituted this action in the Superior Court, Law Division. Subsequently it was transferred to the district court.
Appellants claim that the trial court committed reversible error in certain rulings during trial, in its factual determinations, and in its application of certain principles of law. Defendants contend that plaintiff was barred from recovery because of collateral estoppel based on the civil action for assault and battery, probable cause, and advice of counsel. Appellants seek to set aside the judgment and request the entry of a judgment of dismissal in their favor.
Defendants sued plaintiff in another civil action in the Superior Court, Law Division, demanding compensatory and punitive damages for assault and battery. That action and the present action were pending at the same time. An application to consolidate was denied. Defendants assert that the civil action for assault and battery against plaintiff was tried first and resulted in a judgment for the infant defendant of $1,000 and for the plaintiff-mother of $400; but against them on the issue of punitive damages.
"On a review of any cause, whether criminal or civil, involving issues of fact not determined by the verdict of a jury, this court has the power to make new or amended findings of fact, but it must give due regard to the opportunity of the trial court to judge of the credibility of the witnesses. R.R. 1:5-4(b); 2:5. The permissive power so conferred is sparingly exercised."
It was pointed out in Trusky v. Ford Motor Co. , 19 N.J. Super. 100, 103-104 (App. Div. 1952), that this power is exercised "only where from an examination of the record it is manifest that the findings of fact under review are so plainly unjustified by the evidence that the interests of justice necessitate their nullification."
Here, the district court rendered judgment for plaintiff and against defendants for $850. In its findings it stated:
"On February 7, 1956, the plaintiff was constructing a dwelling house on Ward Avenue, in the City of Clifton. On that date Frederick Kuenstler, Jr., aged 13, admitted that he broke into the partially completed building, through a window and stole several paint brushes.
On February 8th, 1956, the plaintiff worked on the house with subcontractors until about 4:30 in the forenoon. On leaving the premises plaintiff piled up a bunch of cinder blocks where the window had been broken the day before. He returned home, cleaned up, changed his clothes and proceeded to go to Bayonne on business, in his truck. On his way he traveled past the Ward Avenue house. It was dark and as he approached the house in his truck he directed a spot light toward the house to see if everything was all right and noticed that the cinder blocks which he had piled up in front of the broken window had been knocked over.
He stopped his truck and proceeded to walk toward the house. He saw a form through the window walking around in the house and ran to the rear of the house to intercept the intruder. As he reached the rear corner of the house he collided with a person, who was taller than he, whose hands were up-raised and whom plaintiff struck once with his fist. The person fell down and from the voice the plaintiff realized it was a boy whom he had hit, who later was identified as Frederick Kuenstler, Jr.
The plaintiff took the boy to the home of a neighbor and called the Clifton Police. Officers Swede and Linzenbold arrived. The boy, Frederick Kuenstler, Jr., admitted to them and the plaintiff that he had broken into the house and had stolen several articles the day before, and had some of the material which he had stolen, at his home. He also ...