Schondorf v. Griffith , 13 Pa. Super. 580 ( 1900 )

Opinion by

Beaver, J.,

The general principles which govern in actions for malicious prosecution have been so often laid down by this court (Ruffner v. Hooks, 2 Pa. Superior Ct. 278; Auer v. Mauser, 6 Pa. Superior Ct. 618; Fry v. Wolf, 8 Pa. Superior Ct. 468) that it is unnecessary to restate them here. There is no serious allegation that the court below departed from them in any essential particular. The assignments of error relate exclusively to minor details in the trial and charge which may be best disposed of by a brief reference to each seriatim.

If Cohen’s testimony as to the receipt from plaintiff and the information of its receipt to defendant, of the money admittedly received by plaintiff, had been the only evidence in the case tending to negative “probable cause,” the defendants’ point would have been proper and entitled to affirmation. The court admitting its importance, said it was not the only matter for consideration, and in this said truly. If plaintiffs’ testimony was believed, defendant knew of his manner of employment and that he had difficulty in getting time for other business, and if further, as plaintiff testified, he had been authorized to collect the money, with the larceny of which he was charged, some inquiry at least should have been made before such a serious charge as larceny was preferred. There was evidence, independent of that of Cohen, which was proper for. the consideration of the jury as to the fundamental question of probable cause.

The second assignment is not based upon an exception and, if it had been, could not have been sustained. Defendant was properly restrained from stating his conclusions.

The .testimony as to what was done in regard to other leases made by plaintiff was properly rejected. It was not relevant to the issue in any way. Plaintiff had been charged with the larceny of a specific amount received on a particular lease. The third assignment is overruled.

It is true that in the parts of the charge embraced in the fourth and fifth assignments, the trial judge gives the jury instructions as to what would and what would not constitute larceny, but this was in connection with the question of probable cause and was not, when read in connection with the context, in any sense improper.

There is nothing in the sixth assignment requiring comment. The portion of the charge referred to therein related to a-minor phase of the case, but one upon which it was entirely proper to comment. It was not in any sense controlling, and so far as it had any bearing upon the question of malice, helped rather than hurt the defendant’s case.

Upon a consideration of the whole case, we can see nothing of which the defendants have any just right to complain.

Judgment affirmed.