Dorsey v. Winters

Offutt, J., delivered the opinion of the Court. William 0. Dorsey, a resident of Baltimore, in August, 1919, acquired a new Ford automobile. At about eight ⁴⁰² o’clock in the evening of October 2nd of the same year, Harry Dorsey, his son, left it parked on Howard Street near Lexington Street in that city, while he went- to a theatre nearby.

When he returned several hours later the automobile had been stolen. Yearly two weeks later, on October loth, as William 0. Dorsey and his son, William 0. Dorsey, Jr., were driving along Lexington ’Street, they saw parked there an automobile which looked to them like the stolen car.

Upon a more careful examination they were confirmed in the belief that it was the lost car and they thereupon called a policeman. Soon after he arrived, the appellee, who* had left the automobile on Lexington Street, came up and was about to-start it, wbeu the policeman asked him if “it was his car,” and when he said that it was, he was asked where he got it, and he replied that he had bought .and paid for it but he had no “papers” for' it and had bought it from strangers whom he did not know. He was then arrested and taken before Paul Johansen, Esq., a Police Magistrate of Baltimore City, who committed him on the charge of stealing the automobile for’ the action of the grand jury. He was later indicted on thar charge and finally tried, and upon his tidal was acquitted and discharged, and a few days later he brought this, action in the-Court of Common Pleas of Baltimore City.

The ease was subsequently removed to the Baltimore City Court, where it was tried, and the verdict and judgment in that trial being-for the plaintiff the defendant appealed. The record contains ten exceptions, of which one relates to the prayers and the others to questions of evidence. The plaintiff offered six prayers, all of which were granted, and the defendant five, of which three were refused and the-other two granted. The defendant’s first and second prayers challenge, the legal sufficiency of the- evidence to warrant a recovery, and in dealing with them therefore we must refer in -some detail to the testimony.

The evidence offered by the plaintiff, if true, showed these facts: About the first of October, 1919,, ⁴⁰³ two men, strangoia, came to the plaintiff’s home and offered to sell him a second-hand E'ord automobile for $450. After some negotiation be accepted that offer and paid them $100 ou account of the purchase price. They then gave him the keys of the car, a registration card and the license tags. T’ronn time to time he made payments to them, amounting in all, with the original deposit, to $400.

He did not know the men and learned nothing of their title to- the car or their right to sell it. He took receipts for none of the payments hut the last one, and as that receipt was not offered in evidence, it does not appear what names the men gave. On the day of the arrest when he returned to the oar, which he had left on Lexington Street, he found Officer Watchman and the defendant near it, and the policeman asked him if the car 'belonged to him. He said that it did, and he was next asked where he got it, and he answered that he had bought it.

He was then asked for his registration card, which he produced, and upon comparing the engine number on it with the engine number on the card, it was found that they corresponded. The defendant, then produced his registration card, but the engine number on it did not correspond with the engine number on the ear. The policeman then said: “There are his cards; 'his corresponds, yours do not. T do not know what to do about it; but Dorsey then said, fit is my car; 1 can tell it by that little dent in the hack of the body.’ That the officer then said, ‘What do you want me to do.,’ and Dorsey replied, Well, I want you to arrest him.’ That the officer told the defendant that he knew the plaintiffs father; that the father was all right, and that if the defendant wanted the plaintiff or the machine that he, the officer, could get the plaintiff at any time that he wanted to.

That the defendant then said, ‘That is all right, 1 want him arrested, that is my car’; and that thereupon he was taken to the Central Police Station and locked up- in a cell for about an hour and a half. That at the station house Mr. Dorsey insisted that it was his car, and he told the judge ⁴⁰⁴ that it was his ear; that the defendant exhibited his registration card at the station house, and that he, the plaintiff exhibited his registration card, and that as a result of the preliminary hearing at the station house the plaintiff was held for the action of the grand jury. That the witnesses at the station house were the defendant, plaintiff and Officer Watchman.” At the trial of the ease in the Criminal Court of Baltimore City, the defendant appeared as a witness, and on one occasion had it postponed in order to give him an opportunity to produce a witness who would testify that Winters had stolen the machine. While the case was pending the defendant went to Charles H. Osborne, Inspector of Buildings of Baltimore City, to whom Winters had applied for a position and told him that he thought Winters had “taken” his machine.

The number of the Ford car bought by tire plaintiff w'as 3185436. Many of these facts were denied in the defendant’s testimony, but as that conflict was solely a question for the jury, it is sufficient here to refer to such facts disclosed by that testimony as supplement those already stated. From that testimony it appeared that the only Ford motor car bearing engine number 3185436 stamped on it at the factory was sold to Edgar K. Smelser, of Topeka, Kansas, July 10', 1919, and he had it in his possession until Kovember 1Y, 1919, when he sold it. The number originally stamped on the motor of the car bought .by Winters and claimed by Dorsey had been altered by erasing certain figures and stamping others in their place.

The car stolen from Dorsey had a number of marks on it which corresponded with marks on the car found in Winters’ possession and which led Dorsey to identify it as his own. These marks are thus described by him in his testimony: “A mark on the back of the body right at the head; there is a bead around just below the curtain; that at the time the new car was purchased the first thing the defendant noticed was a dent in the body in the back of the bead, which dent was just about the size and ⁴⁰⁵ depth of a thumb; that about a week after the car had been bought the lining on the front bow dropped; that is to say, •the threads broke and it dropped; that he took his boys to task for not haying sewed it back; that they had no white thread, but there was a; piece of white wrapping cord in the office and a bag needle, a needle that was used in sewing up torn bags; and that, in his presence, his boys sewed tbe bow with this white cord all the way across on cop' of the bow, and from the inside of the car it could not be seen that it had been sewed with white cord. That the same cord, the same, bow and the same lining were on the car at the time it was discovered on Lexington Street, and that another identification mark was on the fender; that after the machine was purchased a tail light had been put on, and it had become necessary to drill through the rear of the car. When discovery was made of the car on Lexington Street the tail light was gone, but the holes were still there that were drilled for the tail light, and that from all these identification marks lie knew it was his car.

That when the hood was raised it was found that the engine and the hood were painted with aluminum, very heavy coats of aluminum. The defendant also offered evidence to show that he did nothing to cause the arrest or the prosecution of the plaintiff, and there is also evidence relating to the question of damages, but as if does not bear upon the questions before ns, we need not refer to it at any greater length. Coming1 to the question presented by the defendant’s first and second prayers, there was in the case, in our opinion, evidence legally sufficient to entitle the plaintiff to recover. Baldly stated, the plaintiff’s theory is that the evidence shows that Winters bought an automobile from persons apparently in the open and lawful possession of it, and who also liad a registration card for it issued by the Automobile Commissioner.

That he paid a fair price for it and used it openly on the busiest streets of the city. That, while in the use and possession of it, he was at the instance of defendant ⁴⁰⁶ arrested, imprisoned and prosecuted for larceny, of which charge he was eventually and finally acquitted, and that upon those facts he is entitled to recover. The defendant, on the other hand, contends that, even if Dorsey did procure the plaintiff’s prosecution on the charge of stealing his automobile, there was “probable cause” for that action for these reasons: That the automobile carried so many marks on it similar to marks on the stolen car that he was warranted in assuming it to be same, and that in fact it was the same: and that since he found Winters in possession of the stolen automobile about two weeks after the theft, he was justified in presuming that he had stolen it. But that the automobile which Winters bought ever belonged to Dorsey is neither conceded by the plaintiff nor conclusively established as a matter of law by the evidence, hut whether it did or not is an issue of fact to be passed upon by a jury.

It is true that if the identification marks on Dorsey’s car before it was stolen corresponded exactly with marks on the machine bought by Winters, that would he strong evidence that they were one and the same car, hut it would not he conclusive evidence of that fact. Dorsey and his sons testified that the marks on the stolen car were identical with those found on the car in Winters’ possession, and that testimony was not contradicted, but the court nevertheless was not bound for that reason to assume as a matter1 of law that the car in Winters’ possession was the one stolen from Dorsey. Eirst, because all the evidence as to the “identification marks” on Dorsey’s car when it was stolen and which he relied upon to prove that the car bought- by Winters was his, Dorsey’s car, was in the control of the defendant. In the Manitou case, 116 Fed. 63 , Judge Adams, in dealing with the effect and weight of evidence of that character offered to show that an escape of steam which caused the damage which was the subject of that suit was not. occasioned by the defendant’s negligence, said: “Much testimony has been given on the part of the vessel to show that every proper ⁴⁰⁷ precaution was taken and that every valve was. closed before the vessel went to sea, but all testimony given under these conditions requires: close scrutiny and it is not necessarily to be accepted unless found to be inherently worthy of belief.

Where an account of