Perginsky v. Moskowitz Et Ux.

92 Pa. Super. 318, 1928 Pa. Super. LEXIS 16

• Court: Superior Court of Pennsylvania
• Decided: October 27, 1927
• Docket: Appeal 291
• Status: Published

Opinion

Opinion by

Henderson, J.,

We do not find merit in any of the assignments presented. The evidence warrants the conclusion of the jury that the plaintiff was arrested on a charge of larceny at the instigation of the defendants. The loss of the jewelry was reported to Louis Moskowitz who directed his wife to call the police station and in this way Mrs. Moskowitz “got in touch with the police.” The result of this was that the girl was arrested and confined in a prison cell over night. At the hearing the next day, Mrs. Moskowitz testified. Soon after the arrest, the defendants were notified by the police officer that he had the plaintiff in custody. Louis Moskowitz testified that after the girl told them that she didn’t take the jewelry, “my wife and I decided we would let her go.” The evidence show's theiefore that they caused the girl to be arrested on suspicion and being unable to, sustain the charge on which she was arrested abandoned the prosecution.

That there was a lack of probable cause is evident. The plaintiff had been working in the home of the defendants for three days. She was dissatisfied with her employment and left on Saturday afternoon. Mrs. Moskowitz had not seen her jewelry for two weeks before that time, within which period two other domestics had been employed in the house, and two other persons, not members of the family, had had access to the premises. The defendants had not known anything prejudicial to the plaintiff up to the time she left their house and the most that can be said in excuse of their conduct is that she was suspected of the larceny because she was in a position where she could have committed it. The magistrate very properly held that there was a lack of incriminating circumstances whereupon the prisoner was discharged. On this state of facts, the court could not, with due regard to the law, have given binding instructions on the ground that there was probable cause. The charge of the court on the subject was in substantial conformity^ to Taylor v. American International Ship Building Corporation, 275 Pa. 231. The test is the existence of an honest and reasonable belief in the guilt of the accused and the jury was so instructed.

We are not impressed with the contention that the judgment is excessive. The jury found a verdict for $1,200 which was reduced by the court to $750. When consideration is given to the fact that the young woman sustained an unblemished character and was exposed among her friends to the imputation of larceny and was confined in a cell for a night, we are not convinced that the amount allowed is unauthorized. The ease as well as the evidence to support it was stronger than was exhibited in Friars v. Wilson, 70 Pa. Superior Ct. 522, in which a judgment for $750 was sustained.

The assignments are overruled and the judgment affirmed.