On appeal from Superior Court, Law Division, Bergen County.
Matthews, Morgan and Morton I. Greenberg.
This is a malicious prosecution action in which the trial judge entered judgment for defendant, setting aside a $75,000 jury verdict in favor of plaintiff. The trial judge found, among other things, that as a matter of law the railroad policemen employed by defendant who arrested plaintiff had probable cause for their action, and alternatively, that plaintiff had failed to produce sufficient evidence from which the jury could have found defendant liable for the conduct of its employee police officers in arresting and prosecuting plaintiff. Plaintiff contends that both of these issues were questions for the jury.
The circumstances of the arrest were sharply disputed. Plaintiff had been employed by defendant as a repairman for about 44 years. He testified that before being called out to work on a derailment one evening he had removed the spare tire from his
car to accommodate a package. After finishing work at 3 a.m. the following morning he went to visit two friends at a transshipping facility at one of defendant's railyards, where new automobiles were transferred from the railroad to trucks. According to plaintiff, as he entered the gate of the yard he saw two tires alongside the access road. He put them between the seats of his car, intending to give them to the foreman in charge. But after he took them out of the car, the foreman told him to take the tires to the railroad police office. Plaintiff put the tires in his trunk and began driving toward the terminal where defendant's police department was located.
He was stopped by two railroad policemen shortly after he had entered the public highway. Plaintiff said that after he had explained his possession of the tires to the officers he was taken to the railroad police station where one of the officers told plaintiff that they only wanted him to cooperate by saying that the friends whom he had intended to visit, and who had also been arrested, had given plaintiff the tires. Plaintiff said that the officers' "boss" then questioned him about the abuse of meal vouchers, but when plaintiff denied any knowledge of that subject the officers were told to book him. Plaintiff admitted giving a statement about the tires, but denied giving that portion of the statement which purported to be a confession by plaintiff that he had asked for the tires and had received them knowing that they were stolen. He said that he signed the statement without reading it because he was nauseous and exhausted and had been promised that he could go home if he signed it.
The arresting policeman testified that he and several other officers had established a surveillance of the auto compound, and that about an hour before plaintiff arrived on the scene they observed the two men whom plaintiff described as his friends remove two spare tires from new cars in the compound and carry them to to the office. When plaintiff arrived, according to the officer, he went directly to the office and all three men then put the tires in plaintiff's trunk. After plaintiff and
the other two men had been arrested and taken to the station plaintiff orally admitted knowing that the tires had been stolen. The officer testified that the statement in which plaintiff admitted knowing that he had committed a crime had been recorded verbatim, as the questions were asked and the answers given. He asserted that he watched plaintiff read the statement before signing it.
Plaintiff was indicted and tried on several charges arising from this incident, but was acquitted on a jury verdict. The two men who had been arrested at the same time were tried separately and convicted, but there was no evidence of the facts established at their trial or of the charges on which they were convicted.
The trial judge reserved decision on defendant's motion for judgment at the close of the evidence. He granted that motion, as well as defendant's motion for judgment n.o.v. , after the verdict had been returned. He found that although many of the facts were disputed there was sufficient undisputed evidence to conclude as a matter of law that plaintiff's possession of the tires had given rise to probable cause for his arrest.
Plaintiff argues that where the question of probable cause depends, at least in part, upon facts that are disputed, it is for the jury to say what the facts are and decide whether probable cause existed. Lind v. Schmid , 67 N.J. 255, 266 (1975); Vladar v. Klopman , 89 N.J.L. 575, 578 (E. & A. 1916). We find it unnecessary to decide that question because we agree with the trial judge that ...