For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the Court was delivered by Schreiber, J.
This malicious prosecution suit arises out of a day at the seashore.
On July 7, 1971 the plaintiff Diane S. Lind, her 12-year-old son George, and her mother and father, the plaintiff Helen Sprecher and Henry Sprecher, all of whom lived in and about Philadelphia, decided to spend the day at Surf City, New Jersey. En route home at about 6:30 P.M. they stopped for dinner at the Dutchman's Restaurant in Manahawkin.
The proprietors were Joan Schmid, the defendant, and her husband Robert.
The four patrons were seated promptly and serviced by the waitress, Karen Hackett. After taking the orders, she placed bread, butter and four salads on the table, which were promptly eaten. Then came the entrees. Mrs. Lind and Mrs. Sprecher had broiled striped bass. Mr. Sprecher had weiner schnitzel, and George lobster tails. Mrs. Sprecher objected to the baked potato because it was raw and Miss Hackett replaced that with a mashed variety. When Mrs. Sprecher and Mrs. Lind had taken a bite or two of the fish, both exclaimed that the fish did not taste good and was inedible. Their complaint to the waitress led to Joan Schmid, who was acting as hostess, being summoned. Upon being advised of the complaint, Mrs. Schmid retorted that the fish was fresh and there could not be anything wrong with it. She was asked to sample the fish, but stated she was not hungry since she already had had her dinner, and walked away.
The plaintiffs, saying they did not propose to pay for food not eaten, asked waitress Hackett for the bill. She made out the check for all the ordered food. It totalled $14. Mr. Sprecher and George Lind had eaten their meals. Mrs. Sprecher took $6 from her husband, attached it to the bill, and, with her daughter Mrs. Lind, approached Mrs. Schmid.
Mrs. Sprecher and Mrs. Lind told Mrs. Schmid they would only pay for the food which had been eaten and gave her the bill and the $6, an amount they had calculated to be the correct sum. Mrs. Schmid replied that was not possible and she would have to call the police. Mrs. Sprecher retorted that was fine, bring the police. Mrs. Sprecher and Mrs. Lind were escorted to the bar where Mr. Schmid worked. Mrs. Schmid gave her husband the check and the $6. He telephoned the police. There mother and daughter waited for some 25 to 30 minutes, until Stafford Township Police Officer John Shapley arrived.
Officer Shapley drove Mrs. Schmid, Mrs. Sprecher and Mrs. Lind to the office of the Clerk of Long Beach Township. There Joan Schmid signed a complaint charging Helen Sprecher and Diane S. Lind with violation of N.J.S.A. 2A:170-47. The statute provides that any person who obtains food at a restaurant with intent to defraud the owner is a disorderly person. The Clerk fixed bail at $200 for each. Since Mr. Sprecher had only some $80, he returned to Philadelphia to acquire the balance. In the meantime Mrs. Sprecher and Mrs. Lind were escorted to and detained at the County Jail at Toms River. There they remained from 8:30 P.M. until 3:30 A.M. when Mr. Sprecher returned and bailed them out.
The municipal magistrate heard the matter six days later. At the trial Robert Schmid did not testify, but a James Stavish, a bartender at the restaurant, and a Joseph Stengel did. Stavish and Stengel said that they tasted the fish about 8:30 P.M. and that it was cold but suitable. Mrs. Schmid also tasted the fish on her return and asserted it was edible. Although the judge concluded that "the testimony is clear from what the mother and daughter said that the food wasn't fit to eat,' and he made no factual findings to justify a conclusion that the defendants obtained the food with an intent to defraud the owner, he found both guilty because they should have paid for the food and sued the restaurant and they did not order "additional food.'
On the trial de novo before the County Court conducted on the municipal court transcript the judge found that the cost of Henry Sprecher's and George Lind's meals had been paid, that the refusal to pay the balance of the bill was because the women truly believed the fish was inedible, and that the people had the money to pay for the food and did not try to "sneak out' without paying. The convictions were reversed because the State had "not met its burden of proof to show . . . ...