Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.
[72 NJSuper Page 254] This is a sad and unfortunately too common example of how a case should not be tried. Plaintiff's attorney said things he should not have said. Defense counsel (not present counsel) did not object to most of the utterances, and too late or insufficiently to the remainder. The trial judge took no action to curb or cure the improprieties. As a result, we must reverse for "plain errors"
under R.R. 1:5-3(c) a judgment which we would otherwise affirm.
The action is for malicious prosecution. Plaintiff Isaac Pierce, Jr. had purchased a second-hand automobile from defendant Yaccarino under a conditional sales contract. On or about January 1, 1957 the automobile, while parked unoccupied, was struck and damaged by a motorist insured by the General Accident Insurance Company (General). Even though he first obtained an estimate of $396.95 to repair the damage from another concern, plaintiff brought the damaged vehicle to defendant, who operated as Lou's Body Shop as well as Guaranteed Auto Sales, and left it with defendant to be repaired without an estimate or agreement as to price. Plaintiff testified he did so because when he purchased the car he was given a card by defendant stating that all repairs "must be done through Guaranteed Auto." Plaintiff testified that defendant told him he "would take care of the procedures" of settling with General and would repair the damage with the proceeds of the settlement.
Defendant submitted an estimate of $794.90 to General but later settled with that company for $456.55. Defendant expected General to send him the check or, at least, that he would be one of the payees, but, on January 22, 1958, General sent to the plaintiff a check to plaintiff's order alone for $456.55. Plaintiff knew that he was not insured by General but by another company he called "Globe." Therefore he took the check to someone he called "Seymour Sales" (not connected with anyone else mentioned in this opinion) and asked "what it was and they told [him] what it was." Plaintiff then cashed the check.
On January 29 plaintiff came to defendant's place of business in Neptune for the car. Defendant told plaintiff that the car was at Chris's Body Shop, in Long Branch. He gave plaintiff a check for $125 to the order of Chris's Body Shop and told plaintiff he could pick up the car there. When plaintiff did so he found that not all the
damage had been repaired. Indeed, plaintiff's attorney contended at the trial that the $125 paid to Chris's Body Shop represented the value of all the repairs done on the car and that defendant had expended no more than that sum on it, in spite of the fact that defendant planned to get $456.55 from General.
Plaintiff returned with the car to defendant's place of business and complained to him about the insufficiency of the repairs. Plaintiff testified that he told defendant he did not want the car "because it wasn't properly fixed" and that he asked for another car of the same make and year which defendant had in his yard. Plaintiff said that when defendant refused, saying that all that was needed was "just a few minor adjustments," he asked defendant what he owed him for the repairs, and that defendant answered "that's all right the insurance company will take care of it." Plaintiff then departed with his car. He admits he did not tell defendant that he had already received and cashed the check. He claims that he knew nothing of the amount or details of the settlement with General and believed defendant's statement that the insurance company would pay defendant.
Defendant's version of the surrender of the automobile is quite different. He testified that "Mr. Pierce asked me for the automobile and I explained to him the bill was $456 and I do not release an automobile unless I get paid. He asked me if I would be nice enough to let him have it, he had to go to work with the car and I explained again that I hadn't received the insurance check and I asked him if he had received it and he told me he had not and I asked him if he'd promise me if I gave him the car that he would bring it in as soon as he got [it] and he said he would and on the strength of that I gave him the car." Defendant testified that plaintiff's only complaint as to the repairs was that "the deck lid was not closing properly" and that he told plaintiff "if he would leave the car the following day we'd have the adjustment taken care of."
Plaintiff did not come back with the automobile. Defendant testified that about a week or ten days after January 29, the day plaintiff departed with the car, he learned that plaintiff had received and cashed the check. He testified that he did not make the complaint until after trying "very hard" to locate plaintiff in Neptune. The complaint was made on February 24, 1958, and plaintiff was arrested on that day.
The complaint was inartistically drawn and it is difficult to determine precisely what crime or crimes (if any) it charged. Plaintiff claims it charged forgery; defendant denies it, and argues it charged only the obtaining of possession of the car by means of false promises or pretenses, contrary to N.J.S. 2A:111-1. As we have said, the check issued by General was dated January 22, but the car was not taken by plaintiff until January 29. The complaint charged that on January 22 plaintiff did "commit a fraud" upon Yaccarino "to wit: the defendant had repairs completed upon his motor vehicle * * * incurring a bill of Four hundred and fifty six dollars and fifty five cents ($456.55) and the defendant did thereupon cash a check made out for these repairs by the American Casualty Group of Philadelphia, Pennsylvania for this amount, said check being issued to Isaac Pierce, Jr. & Lou's Body Shop, and did fail to pay the complainant for the work completed by the complainant, thereby depriving the complainant of his rightful goods and chattels, all of which is contrary to and in violation of the R.S. of the State of New Jersey and therefore he prays that the said Isaac Pierce Jr. may be apprehended and held to answer to said complaint, and dealt with as the law and justice may require."
Plaintiff was released on bail on February 25, the day after his arrest. On March 4 he was given a preliminary hearing before the Neptune acting magistrate. At that time defendant, having learned that the check was payable to Pierce alone, withdrew the allegation of the complaint that Pierce had cashed a check "issued to Isaac Pierce Jr.
and Lou's Body Shop," but the acting magistrate (as he testified) "held Mr. Pierce for the grand jury on the grounds of false pretenses." The record before us does not show what Yaccarino's testimony was before the magistrate.
The grand jury handed down an indictment which purported to charge Pierce with violating N.J.S. 2A:111-1 in that he did "falsely represent, pretend and promise to the said Louis Yaccarino that he * * * would pay over to the said Louis Yaccarino" the check, and thus obtained the car. On January 28, 1959 defendant was arrested on this indictment. This time he was in jail until February 2, when he was released on bail. In May he was tried on the indictment, and acquitted after a two-day trial. The present action was then instituted. It ...