Opinion
April 9, 1957.
July 25, 1957.
Practice — Verdict — Remolding — Erroneous addition by clerk of court.
1. In an action for malicious prosecution, in which it appeared that at the close of plaintiff's case a motion for a compulsory nonsuit as to the wife-defendant was granted, and the trial judge so informed the jury; that the verdict of the jury as tendered to the trial judge originally recited a verdict in favor of the plaintiff; that the verdict slip contained an addition, "against both defendants", presumably added by the clerk, who took the verdict and who had no knowledge that a nonsuit had been granted in favor of the wife; and that plaintiff consented to molding of the verdict; it was Held, in the circumstances, against the husband-defendant's contention, that the verdict was properly remolded by striking out the added words.
Malicious prosecution — Probable cause — Question for court or jury — Disputed facts — Charge to jury — Plaintiff's humiliation — Technical arrest.
2. It was Held, in the circumstances, that the trial judge did not err in submitting the question of probable cause to the jury.
3. Where there are disputed facts bearing on the question of probable cause, the jury must first determine these disputed facts
4. Where it appeared that the trial judge instructed the jury that there was not much humiliation (suffered by plaintiff) such as might be involved in many criminal charges of the rather innocuous character of trespassing on the property of another, as in the instant case, but that the matter of damages was for the jury, and that the defendant complained of the charge, asserting that there was no evidence of any humiliation of plaintiff; it was Held, in the circumstances, that the charge did not constitute prejudicial reversible error.
5. Where it appeared that defendant, who had moved for judgment n.o.v., complained that there was no arrest and thus one fundamental element of malicious prosecution was missing; that the trial judge had affirmed plaintiff's point for charge that when a constable with a warrant touched the person named in the warrant and read the warrant, a technical arrest was made; and that the trial judge had further charged that he did not recall whether anything had been said as to whether the constable had touched plaintiff or not, but that the jury would recall that, and had called the jury's attention to the fact that the plaintiff was not taken away in the custody of the constable, was never under more than technical custody, and that an element of damage that cropped up in many malicious prosecution cases was not involved in the instant case; it was Held, in the circumstances, that judgment n.o.v. was properly refused.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
Appeal, No. 119, April T., 1956, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1954, No. 2412, in case of Walter Jocz v. Albert A. Kness and Esther Kness. Judgment affirmed.
Trespass for malicious prosecution. Before THOMPSON, J.
Verdict directed in favor of defendant wife; verdict recorded in the sum of $300 for plaintiff and against defendants husband and wife; order entered molding verdict and judgment entered against husband-defendant only. Defendants appealed.
Allen N. Brunwasser, for appellants.
Max U. Applebaum, for appellee.
Argued April 9, 1957.
The judgment of the court below is affirmed on the opinion of Judge A. MARSHALL THOMPSON, as reported in 9 Pa. D. C. 2d 51.