49 Vroom. Lane v. Pennsylvania R. R. Co. On error to the Supreme Court. For the plaintiff in error, Vredenburgh, Wall & Carey. For the defendants in error, Herbert Clark Gilson. The opinion of the court was delivered by TRENCHARD, J. These two writs of error bring up for review judgments against the Pennsylvania Railroad Company entered in the Supreme Court on verdicts in the Hudson Circuit, one at the suit of Michael J. Lane, the other at the suit of Ellen Lane. The actions were tried and have been argued here together. In their declarations, as amended at the trial, both plaintiffs averred that the defendant, by its servants, with force and arms, &c., entered the dwelling-house of the plaintiff. In each case the defendant pleaded, besides the general issue, a special plea which was treated at the trial, and in the argument in this court, as a plea justifying under a search-warrant. Both plaintiff's replied de injuria. In each case, at the close of the evidence, the defendant moved for a direction of a verdict in its favor for the reason, among others, that the proofs demonstrated that the defendant had probable cause for suing out the search-warrant. The trial judge denied the motion and submitted to the jury the question of probable cause, instructing them that if they found no probable cause for suing out the warrant the plaintiffs were entitled to recover. That action is assigned as error. Not only were the actions tried below both by the court and counsel upon the theory that, if there was a want of probable cause for suing out the search-warrant, the plaintiffs were entitled to recover, but they also have been argued in this court upon the same theory. Assuming, but not deciding, that the declarations state a cause of action, and assuming, but not deciding, that the pleas set up a justification, we are of the opinion, in view of the state of the evidence, that the learned trial judge erred VOL. XLIX. 43 Lane v. Pennsylvania R. R. Co. 78 N. J. L. in submitting the question of want of probable cause to the jury. The trial judge charged the jury, and properly, we think, that it was "manifest and undisputed" by the evidence that certain goods had been stolen from the cars of the defendant company. There was evidence tending to show, and the jury must have found, that a warrant authorizing a search of the premises occupied by the plaintiffs was regularly issued on the complaint of the officers of the defendant company, for the judge charged the jury that unless they found that such warrant had been issued there could be no recovery. He then proceeded with the instruction, of which complaint is made, that, if there was a want of probable cause for suing out the warrant, the plaintiffs were entitled to recover. In cases of criminal prosecutions probable cause means reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the accused is guilty of the offence with which he is charged. Spencer v. Anness, 3 Vroom 100; Stricker v. Pennsylvania Railroad Co., 31 Id. 230; Miller v. Milligan, 48 Barb. 30: 26 Cyc. 24, and cases cited. To constitute probable cause a prosecutor need not necessarily have personal knowledge of the transaction of which he complains; he may rightfully act upon information communicated to him in the ordinary routine of business, where he honestly believes such information to be true, and the information is of such a character, and is communicated in such a manner as, under similar circumstances, it would be acted upon by a business man of ordinary prudence. Spencer v. Anness, supra; Gailaway v. Burr, 32 Mich. 332; Lamb v. Galland, 44 Cal. 609; Chatfield v. Comerford, 4 Fost. & F. 1008; Lister v. Perryman, L. R., 4 H. L. Cas. 521; Miller v. Milligan, supra. Nor does the question of probable cause turn upon a consideration of what were the facts of the case, as the trial judge seems to have charged, but upon a consideration of what were the facts as they appeared to, or were known by, or were 49 Vroom. Lane v. Pennsylvania R. R. Co. believed to be by the defendant. James v. Phelps, 11 Adolph. & E. 483. The controlling fact is not was there actual cause for the prosecution, but had the defendant, at the time of instituting the prosecution, probable cause for so doing. In the present case, as we have pointed out, it was undisputed that certain goods had been stolen from the cars of the defendant company. It further appeared from the evidence and was undisputed that Michael J. Lane, one of the plaintiffs, was employed by the defendant as a watchman in the yard where the cars were; that he with the other plaintiff, his wife, lived in the premises entered and searched; that before the search-wariant was sued out two other watchmen, employed by the defendant company to detect stealing, reported to the defendant that they saw the plaintiff Michael J. Lane steal the goods from the defendant's car, and that Lane had admitted to them that he had done so. Clearly such information communicated by regularly employed watchmen warranted the defendant in believing that Lane had stolen the goods, and, in the absence of evidence. tending to show negligence or bad faith in the employment of the watchmen, or that the defendant knew or had reason to suspect the information to be false, constituted probable cause for suing out the search-warrant. Spencer v. Anness, supra: Mure v. Kay, 1 Taunt. 43. We do not perceive any evidence of bad faith. There is nothing to show that the defendant knew, or had reason to suspect, the information to be false. It was communicated in the ordinary routine of business, and there was no evidence of negligence or bad faith in the employment of the watchmen who furnished the information. It is true that the evidence at the trial tended to show the innocence of the plaintiff Michael J. Lane. But the question of probable cause does not turn upon the actual commission of the original wrong charged. The evidence showed sufficient ground for believing it to have been committed, and the justification was made out. Where, as in this case, the facts are undisputed, and but one inference can be drawn from them, the question of prob Calumet Const. Co. v. Board of Education. 78 N. J. L. able cause is one of law for the court alone, and it is erroneous to submit any phase of the question to the determination of the jury. Bell v. Atlantic City Railroad Co., 29 Vroom 227; Magowan v. Rickey, 35 Id. 402; Stricker v. Pennsylvania Railroad Co., supra; McFadden v. Lane, 42 Id. 624, 628; Hartdorn v. Webb Manufacturing Co., 75 Atl. Rep. 893. Since the judgments are upon verdicts predicated upon the finding by the jury of a want of probable cause for suing out the search-warrant, they cannot be permitted to stand. Whether, if there had been a jury question with respect to probable cause, the plaintiff in either case could have recovered in view of the pleadings and the other proofs, we express no opinion. For the reasons stated the judgment below in both cases will be reversed and a venire de novo awarded. For affirmance-None. For reversal-THE CHANCELLOR, CHIEF JUSTICE, GARRISON, SWAYZE, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGII, VROOM, GRAY, DILL, CONGDON, JJ. 15. CALUMET CONSTRUCTION COMPANY, DEFENDANT IN ERROR, v. THE BOARD OF EDUCATION OF THE CITY OF HOBOKEN, PLAINTIFF IN ERROR. Submitted November 23, 1909-Decided June 20, 1910. Defendant employed plaintiff, by written contract, to construct a school building partly of reinforced concrete. The specifications, which formed part of the contract, provided with respect to the reinforcing bars, that "all shear members must be rigidly attached to the main tension member." Dispute arising as to the precise character of bar called for by the specifications, and plaintiff refusing to furnish the bars demanded by defendant, the latter 49 Vroom. Calumet Const. Co. v. Board of Education. undertook to rescind the contract for non-performance by plaintiff. and plaintiff sued for damages on the ground that it had been prevented from completing the work by the wrongful act of defendant. Held, that on the trial of such suit it was error to exclude testimony that the phrase "rigidly attached" had a peculiar meaning in the concrete construction trade. and if so, what that meaning was. On error to the Supreme Court. For the plaintiff in error, Horace L. Allen and Julius Lichtenstein. For the defendant in error, Collins & Corbin. The opinion of the court was delivered by PARKER, J. The board of education of Hoboken contracted with the plaintiff below, a corporation, for the construction of a new school building, the principal building material of which was to be reinforced concrete. The contract and specifications are voluminous, as is usual in such cases, but the dispute between the parties centred around the question what kind of a steel reinforcing bar was required by the specifications. For the defendant it was claimed, in effect, that only one kind of bar, and that a patented article, would answer the requirements; the plaintiff maintained that another bar, adopted and proposed to be used by them, was a compliance with the specifications. Defendant, the board of education, refused to permit the use of plaintiff's bar; the work halted and remained at a standstill for some five months, until defendant, after several times directing service of three days' notice under the contract for failure of the contractor to proceed, finally by resolution formally rescinded the contract, basing the rescission on the contractor's alleged refusal to proceed with the work. This led to the present action which is predicated on the theory that the rescission was unwarranted, and therefore is based on the doctrine enunciated in Kehoe v. Rutherford, 27 Vroom 23, and Wilson v. Borden, 39 Id. 627. The jury returned a verdict of about $27,000, |
