In order to enable the plaintiff to recover in an action for malicious prosecution he must prove both want of probable cause for the prosecution and also that there was malice on the part of the defendant in instituting it.

Probable cause is a reasonable ground of suspicion that would warrant an ordinarily prudent man in believing the party guilty of the offense.

Proof that the original proceeding had terminated in a verdict of not guilty is prima facie evidence of want of probable cause. Whether this has been overcome by the defendant's evidence is a question for the court where the facts are not in dispute.

Malice exists where the prosecution was brought for any motive other than the purpose of bringing a person to justice.

Where, in such case, it is shown that the prosecution was instituted on the advice of counsel and at the request of the district attorney, this rebuts the presumption of want of probable cause arising from the verdict of not guilty, and shows that there was no malice, and the feelings of the defendant toward the plaintiff, as shown by a remark made, are immaterial.

There is no false imprisonment where a person is detained at the police station and in jail on a warrant duly issued for his arrest. There is no duty imposed on the officer making the arrest to tell his prisoner to get bail or take him where he could get it unless requested to do so.

Action for damages for malicious mischief. Verdict for defendant. Rule for a new trial.

This is an action to recover damages for malicious prosecution. The jury, under our instructions, found a verdict for the defendant, and we are now asked to grant a new trial.

The plaintiff's cause of action, as set forth in the statement, is that the defendant, who is a constable, on April 4, 1918, falsely, maliciously, and without probable cause made a complaint against the plaintiff before A. P. Newell, an alderman in the City of Lancaster, charging that he had unlawfully dissuaded, hindered and prevented a witness, who had been duly subpoenaed, from attending a hearing before an alderman, contrary to the Act of Assembly; that a warrant was issued on the complaint; that the plaintiff was arrested by the defendant, on April 5, 1918, taken first to the police station, then to the jail on a commitment issued by the alderman; that he was released on the following day upon giving bail for a hearing; that the case against him was returned to Court at that hearing, and at the trial, the jury returned a verdict of not guilty by direction of the Court.

All of these allegations were proven at the trial except that the act of the defendant, in making the complaint, was malicious and without probable cause.

In order to enable the plaintiff to recover in an action for malicious prosecution, he must prove both want of probable cause for the

VOL. XXXVII, No. 16

Herr v. Lollar.

prosecution, and also that there was malice on the part of the defendant in instituting it. The absence of proof of either of these essential elements is fatal to the plaintiff's case: Dietz v. Langfitt, 63 Pa. 235.

Probable cause is defined to be a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing the party is guilty of the offense: McClafferty v. Philip, 151 Pa. 86. Proof that the criminal proceedings had terminated in a verdict of not guilty is prima facie evidence of want of probable cause: Miller v. Hammer, 141 Pa. 196; Grohmann v. Kirschman, 168 Pa. 189.

Malice exists where a wrongful act is done without good cause or excuse. In malicious prosecution it may be any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice. It exists where the prosecution is commenced for the purpose of revenge or to obtain money or to accomplish any end or advantage other than the punishment of the person charged with the offense: Weinstein v. Gelishansky, 66 Sup. 38; Ruffner v. Hooks, 2 Sup. 278; MacDonald v. Schroeder, 214 Pa. 411; Squires v. Job, 50 Sup. 289. Malice must be proven or the plaintiff cannot recover: Campbell v. Sidwell,, 20 Sup. 183; Bryant v. Kuntz, 25 Sup. 102; Kirkpatrick v. Kirkpatrick, 39 Pa. 288; Dietz v. Langfitt, 63 Pa. 235.

From these authorities, it is clear, that the burden was on the plaintiff to prove that the prosecution of him was without probable cause, and also that it was commenced by the defendant for revenge or for the accomplishment of some purpose other than bringing the plaintiff to justice.

The plaintiff met the first of these requirements, temporarily at least, by proving that the criminal prosecution against him had been terminated by a verdict of not guilty, as that, as we have shown, is prima facie evidence of want of probable cause. Whether the presumption thus arising has been overcome by testimony on the part of the defendant is a question for the Court where the facts are not in dispute.

Probable cause is a mixed question of law and fact. Where the facts are undisputed it is the duty of the Court to determine whether or not the existence of probable cause has been shown, and to instruct the jury accordingly. Travis 7. Smith, 1 Pa. 234; Elbert v. Folwell, 1 W. N. 228; Boyd v. Kerr, 216 Pa. 259; Robitzek v. Daum, 220 Pa. 61; Sheldrake v. Rumpf, 68 Sup. 546. When, in the opinion of the Court, the undisputed testimony of the defendant shows that the presumption of probable cause arising from the acquittal of the defendant has been rebutted, it is its duty to instruct the jury to find a verdict for the defendant: Laughlin v. Clawson, 27 Pa. 328; Madison v. P. R. R., 147 Pa. 509.

We did not decide at the trial that there was probable cause for the prosecution of the plaintiff, though we are now of the opinion that we should have done so under the above authorities. The defendant called Charles E. Workman, attorney for the prosecutor in the case in which the witness was alleged to have been dissuaded, hindered and prevented from attending a hearing. He testified that he submitted all

Herr v. Lollar.

the facts to S. V. Hosterman, Esq., Acting District Attorney, who drew up the complaint, and requested the defendant in this case to sign it and be sworn to it. Mr. Hosterman and the defendant testified to the same facts. This testimony was not contradicted, and it furnished reasonable grounds of suspicion to the defendant, sufficient to warrant a reasonably prudent person in believing that the plaintiff was guilty of the offense charged, and justified the defendant in making the complaint. As these facts were undisputed it was our duty to decide that this rebutted the presumption of want of probable cause that arose from the criminal proceedings having been terminated by a verdict of not guilty.

But if this conclusion is incorrect the plaintiff was not entitled to recover because there was no evidence of malice on the part of the defendant in instituting the criminal proceedings against the plaintiff.

Where a prosecution is instituted on the advice of counsel, and there is no evidence that the defendant obtained that advice as a mere cloak for his malice, there is no malice in the prosecution: Fisher v. Forrester, 33 Pa. 501; McClafferty v. Philp, 151 Pa. 86; Beihofer v. Loeffert, 159 Pa. 365; Walter v. Sample, 25 Pa. 275. Where a prosecution is made on advice and at the request of the district attorney no malice exists on the part of the prosecutor in making it: Laughlin v. Clawson, 27 Pa. 328; Madison v. P. R. R., 147 Pa. 509.

It having been shown by testimony on the part of the defendant, as we have above stated, that the prosecution of the plaintiff was instituted on the advice of counsel and at the request of the district attorney, all of which is uncontradicted, there was no malice on the part of the defendant in making it. In fact, it appears that he was not consulted as to the facts. The attorney for the prosecution consulted the acting district attorney, gave him all the facts, and he advised the prosecution, drew up the complaint, and sent for the defendant and requested him to sign and be sworn to it. The prosecution was, therefore, commenced with probable cause and without malice on the part of the defendant, as he had no motive in making it, other than the punishment of the plaintiff for the violation of the law. The testimony that the defendant sometime previously said to the wife of the plaintiff that he would get the plaintiff and put him in jail does not show malice, as the prosecution was not instituted by the defendant for the purpose of doing this, but only in obedience to a request of the acting district attorney. The feelings of the defendant toward the plaintiff are not material, if the testimony shows, as the uncontradicted testimony here does, that the prosecution was not instituted because of any ill-feeling against the plaintiff, and for the purpose of revenge.

It is urged that the plaintiff's statement seeks to recover damages for malicious prosecution and also for false imprisonment. If we concede that these actions can be joined together the plaintiff cannot recover for false imprisonment under the statement filed, nor was there any testimony produced to show false imprisonment. It is true he refers to his having been arrested and imprisoned, in his statement, but he does this only for the purpose of showing such facts as would entitle him to substantial damages for the malicious prosecution. These refer

Herr v. Lollar.

ences to his imprisonment are not set forth in the statement to make such imprisonment a cause of action, but as a means of showing how he was injured by the malicious prosecution. Even though the plaintiff is correct that the statement alleges false imprisonment as a cause of action, the proof submitted by the plaintiff does not show it and would not justify a recovery for it. The plaintiff was not detained in the police station or in the jail by any unauthorized act of the defendant. The warrant was authority for his arrest. His detention in the police station and jail, the latter on authority of the alderman's commitment, did not falsely imprison the plaintiff, as he did not obtain or produce bail until the following day, when he was released. It is not material where he was imprisoned so long as he was not deprived of his liberty by any unauthorized act of the defendant, and the testimony does not show that he was thus deprived of his liberty. No duty rested upon the defendant to tell the plaintiff that he could get bail nor to take him to obtain it, unless requested to do so by the plaintiff. It was not proven that this request was made. The fact that the warrant instructed the defendant to take the plaintiff to the alderman's office does not affect the case, unless his failure to be taken there prevented his obtaining bail. There is no proof that it did, because bail was not obtained by him until the next day. Instead of the case of Huber v. Walker, 32 L. L. R. 97, affirmed in 62 Sup. 299, being in conflict with these views, we think it fully sustains them.

We are satisfied that under the law and the evidence the verdict was properly found for the defendant, and therefore discharge the rule for a new trial.

Rule discharged.

OBITUARY.

B. C. Kready, Esq.

Benjamin C. Kready was born in Manor Township, at the old Kready homestead near Hambright's Hotel, August 13, 1836, his parents being John and Margaret Cram Kready.

He graduated from the Millersville State Normal School in 1861. He studied law under the late Isaac C. Heister, Esq., and was admitted to the Bar on October 12, 1863.

Mr. Kready was the oldest member of the Lancaster Bar and remained in active practice until his death.

He was a Republican in politics, was for many years County Solicitor and served for some years as a member of the City Council of Lancaster.

He died suddenly on Friday, February 6, 1920, from heart failure. In accordance with the request of the family, no Bar meeting was held to take action on his death.

The death of B. C. Kready, Esq., was announced in Court on Saturday morning, and Judge Landis paid tribute to his memory, referring to his high standing at the local bar and that he had been much trusted by a large clientage, and remarking that he was the first elected City Solicitor under a law subsequently repealed.

Court af Common Pleas of Lancastec County

Michael J. and Elizabeth Phelan v. Armstrong Cork Co.

Workmen's Compensation Act of June 2, 1915-Liability of third party-Subrogation of employer-Amendment of statement—Joinder of employer as plaintiff—Statute of limitations.

Under Section 319 of the Workmen's Compensation Law of June 2, 1915, P. L. 736, an employer who has been found liable for compensation, is entitled, where a third person is also liable, to be subrogated to the right of his employee against such third person to the extent of such employer's liability and whether or not such employer must of necessity be joined as plaintiff in an action by the employee against the third person, there is no reason why this should not be permitted by amendment when requested.

The fact that the statute of limitations would bar such employer from bringing a new suit against the defendant does not prevent such amendment, as the purpose is not to enable the employer to recover against the defendant, but only to protect the employer's rights as against the plaintiff to recover the compensation paid to the plaintiff, with which the defendant is not concerned, as its liability is not affected.

It would seem that without this addition to the record the plaintiffs would hold as trustees for such employer the amount of a verdict recovered equal to the compensation paid by the employer.

Rule to amend plaintiff's statement. August Term, 1917, No. 51.

Howard J. Lowell and B. F. Davis, for rule.

Charles G. Baker, contra.

January 17, 1920. Opinion by HASSLER, J.

From the statement filed by the plaintiffs it appears that this is an action to recover damages for the death of their son, William A. Phelan, caused by the alleged negligence of the defendant company. He was an employee of A. B. Rote & Company, who were engaged in making repairs to defendant's buildings on September 1, 1916, when he was injured by defendant's elevator, from which injury he died. They made claim for and received compensation for their son's death from A. B. Rote & Company under the Workmen's Compensation Law of June 2, 1915, P. L. 736.

An affidavit of defense, denying plaintiffs' right to recover on the statement, was filed by defendant, alleging that under the Act of Assembly of 1915, A. B. Rote & Company, the employers of plaintiffs' son, were entitled to recover, and that the plaintiffs were not.

The plaintiffs then asked to amend the caption, pleadings and statement of the suit, so that "Michael J. Phelan and Elizabeth Phelan, acting for the use of themselves, and A. B. Rote & Company, will be the plaintiffs." Upon this application we granted the rule which we are about to dispose of.

The defendant contends that it cannot be done at this late day, as VOL. XXXVII, No. 17