WILLIAM E. DAVENPORT, Respondent,
THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.
APPEAL by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 16th day of May, 1911, upon the verdict of a jury for $400, and also from an order entered in said clerk's office on the 20th day of May, 1911, denying the defendant's motion for a new trial made upon the minutes.
Leroy B. Williams, for the appellant.
Frank E. Young, for the respondent.
The plaintiff has recovered a verdict of $400 for malicious prosecution. He was arrested on process issued by a justice of the peace upon the complaint of one Hatfield, who was employed by defendant as a detective officer at its freight yards in the towns of De Witt and Manlius, near the city of Syracuse.
It is urged by defendant in support of this appeal that on the undisputed evidence defendant's agent, Hatfield, as matter of law, had probable cause for instituting the criminal prosecution
against plaintiff. We think defendant is correct in this contention.
Hatfield had been employed by defendant in this freight yard for about three and a half years, and at Buffalo three years before that; he had two assistants under him; there had been numerous thefts from the freight cars located at defendant's yards at De Witt, and it was Hatfield's business to investigate and prosecute for these thefts, if he could discover who had stolen the property. Plaintiff was a brakeman employed in this yard. One Gilmore and Beam were also brakemen employed in the same yard. Early in May, 1910, Gilmore and Beam had been arrested, charged with thefts from the freight cars in this yard, and had acknowledged their guilt and given information to Hatfield as to other brakemen in the yard who had also been in the habit of stealing from the cars, and, among others, plaintiff Davenport. On May 23, 1910, Hatfield, with Gilmore, went before Justice of the Peace Orry R. Evans, in the town of De Witt, and Gilmore there made an affidavit in reference to his knowledge of plaintiff stealing property from defendant's cars. He made a statement and the justice took it down in writing, and Gilmore signed and swore to it as an affidavit. In this statement he said that he had known Davenport for about four years; that about two years prior he saw Davenport get into a car loaded with merchandise in the fast freight yards of defendant in the town of Manlius, and when he came out he had two dozen oranges; after that he saw him coming from a car with two pieces of meat from the refrigerator car; they looked like pork loins; that about a year ago he saw him coming out of a loaded car, the seal of which had been broken, with two pairs of men's shoes, and had them under his coat; about two weeks later he saw him coming from a loaded car, the seal of which had been broken, with two pairs of ladies' slippers of good quality; eight or nine months ago he saw him stand opposite a loaded car and had in his possession three or four pairs of men's working gloves, and he asked Gilmore if he wanted some and Gilmore said, 'No,' and Davenport said, 'All right; ' 'about two weeks ago I saw him reach into a loaded
car and get two or three rose bushes and a quantity of seeds and bulbs.' After this affidavit was sworn to and on the same day Hatfield made an affidavit before the same justice, charging plaintiff with stealing the two rose bushes and a quantity of bulbs and seeds of the value of two dollars, being the last items referred to in Gilmore's affidavit. On these two affidavits the justice issued his warrant, plaintiff was sent for, pleaded not guilty and was allowed to go on his own recognizance and was afterward tried and acquitted. Hatfield had no personal acquaintance with plaintiff and nothing appeared to indicate that either Hatfield or any one connected with defendant had any malice toward plaintiff or motive for seeking to injure him. Early in May, another brakeman, Beam, had been arrested and confessed to have stolen from defendant's cars in this same yard, and on the sixth of May he made a long affidavit reciting numerous larcenies known to him, and stated near the close of the affidavit that among the railroad men that he knew had stolen goods from the cars at De Witt yards were several conductors and brakemen, whose names were given: 'George Gilmore, a brakeman named Davenport and a brakeman named Doyle.' This affidavit Hatfield had in his possession. He had investigated a number of the cases and had some of the persons arrested and some had been convicted.
The evidence given by plaintiff upon the trial of the present case consisted of that of Hatfield to show that he was in the employ of defendant company, and his duties in that employment; that a few days before he caused plaintiff's arrest he had procured a search warrant and searched plaintiff's house and had found certain cushions, lanterns and torpedoes which appeared to be railroad property but not known to him with certainty to be railroad property and claimed by plaintiff's wife at the time the search was made to belong to parties residing at her house or to be rightfully in their possession. Next, the evidence of the justice, Evans, who produced his docket and testified that plaintiff was arraigned and tried before him with a jury and that the jury brought in a verdict of not guilty and that Davenport was acquitted and discharged. Next, the evidence of plaintiff himself, to show his employment with defendant and its duration; his arrest; that he had
never stolen anything from defendant's cars; that he had some rose bushes in his yard; that the property found in his house at the time the search was made was not stolen property; that he knew Gilmore and did not know Hatfield; that he worked as a brakeman on the road, running on freight trains, and then worked as a brakeman in the yard about five years; that about May ninth he and his wife had set out in his yard some rose bushes which he had purchased from a nursery firm of Geneva. Next, the deposition of plaintiff's wife, who was ill, to show the circumstances of the search of her house by Hatfield and information which she gave Hatfield at the time in respect to the several articles found, to the effect that they were not stolen property. During the cross-examination of Hatfield by defendant's counsel the facts were brought out in reference to the information which Hatfield had received from Beam and Gilmore and that he believed these statements and acted in good faith and without malice in causing plaintiff's arrest. The two affidavits were received in evidence on this cross-examination, and defendant's counsel went fully into the examination of this witness in behalf of defendant. Plaintiff gave no other testimony, and, after he had rested, defendant recalled the ...