Before LINDLEY, and SCHNACKENBERG, Circuit Judges, and PLATT, District Judge.
The plaintiff obtained a verdict for $60,000 in a suit for malicious prosecution. Judgment was entered against the defendant, The Pennsylvania Railroad Company, and it has taken an appeal contending:
1. On the undisputed facts defendant had probable cause to initiate the prosecution of the plaintiff.
2. The trial court erred in admitting certain evidence:
(a) The return of the "Not a True Bill" by the State Grand Jury.
(b) The acquittal order of the plaintiff in the criminal proceedings of the federal court.
(c) Evidence of matters not known to the defendant when the prosecution was initiated.
(d) The termination of the plaintiff's employment for violation of company rule.
3. The verdict was the result of passion and prejudice.
4. The trial court erred in its instruction on the subject of damages.
The plaintiff originally filed a two count claim for relief. The first count, later dismissed, alleged in substance that the defendant was wrongfully discharged from his employment and prayed damages therefor. The second count charged that a complaint was signed by an authorized agent of the defendant in the Municipal Court of Chicago without probable cause, whereby the plaintiff was charged with grand larceny; that the case was presented to the grand jury of the Criminal Court of Cook County and a "Not a True Bill" was returned. The plaintiff asked for both compensatory and punitive damages.
The plaintiff, Fred W. Brandt, Sr., was 60 years of age, married and had three adult children. He lived in Chicago 32 years. He had completed one year of high school. He had been employed by the defendant continuously for 28 years. He had a good work record and a good reputation among his fellow employees. The plaintiff's health and strength, including his ability to lift, was impaired when he was afflicted with carcinoma of the lung requiring surgical removal. Thereafter, he was assigned to light duties as "Order Car Man" by the defendant railroad in which employment he continued. On January 27, 1952 he was at work in the defendant's 59th Street Yard in Chicago. Prior to this time there had been numerous thefts of beer from cars while in the defendant's yard. About 11:30 a.m. a certain refrigerator car containing a shipment of Schlitz beer arrived in the yard en route from Milwaukee, Wisconsin, to Nassawadox, Virginia. Six double cases of beer containing 48 cans each were taken from the car. Jessup, foreman of the defendant's car repair shop, received an anonymous telephone call informing him that men had been seen loading cases of beer in an automobile just west of the viaduct of 59th Street. The license number of the automobile was also reported to him. Jessup went to the yard, broke the seal on the car, and found that it contained Schlitz beer. He telephoned these facts to the Company's downtown police office. Officer Braun and Captain Anspach, the defendant's employees, ascertained from the Chicago Police Department the name and home address of the owner to whom the license number had been assigned. They went to this address, found R. A. Marker and saw a double case of Schlitz beer. Marker was a switchman for the defendant. He told them he had purchased the beer on the way home from the yard for $2.00 from an unidentified man near the 59th Street viaduct. He voluntarily surrendered the beer.
The next morning Anspach ascertained that this beer was part of the interstate shipment. Lieutenant Flack, Assistant to Captain Anspach, telephoned the Federal Bureau of Investigation and Special Agent Tharp commenced investigation of the theft. Tharp, with Anspach or Flack, went to the home of car inspector Paul Dankert, an employee of the ...