On this day in 1975, the Supreme Court decided Lind v. Schmid, 67 N.J. 255 (1975). It has been cited well over one hundred times and is still a leading authority on malicious prosecution.
The case arose out of allegedly inedible fish. Plaintiffs, mother and daughter, and part of a group of four, were eating dinner at defendants’ restaurant in Manahawkin, NJ. They both ordered broiled striped bass. When they began to eat it, they found that it tasted bad and was not edible. Defendant said the fish was fresh and could not be bad, but she refused to taste it. Plaintiffs said they would pay only for the food they had eaten, not the fish. Defendant retorted that she would call the police.
The police came and took plaintiffs to the local Clerk’s office. There, defendant signed a complaint charging plaintiffs with obtaining food at a restaurant with intent to defraud the owner, a disorderly persons offense under N.J.S.A. 2A:170-47. Bail was set at $200 for each plaintiff. They and their party did not have that amount of cash then, so they were held in jail until 3:30 AM the next day when they were bailed out.
At trial before a municipal judge, defendant and two restaurant employees, having tasted the fish, testified that it was “cold but suitable.” Plaintiffs testified that the fish was inedible. The judge found that “the testimony is clear from what the mother and daughter said that the food wasn’t fit to eat.” But he found them guilty because they should have ordered other food or paid for the fish and then sued the restaurant. He made no findings of fact that would have supported a ruling that plaintiffs acted with intent to defraud.
Plaintiffs appealed, and at a trial de novo, they were found not guilty. That judge found that the restaurant had not carried the burden of proving intent to defraud.
Plaintiffs then sued for malicious prosecution. But defendant won summary judgment, on the ground that the municipal court conviction, though later reversed, conclusively showed that there was probable cause to prosecute. After the Appellate Division affirmed, the Supreme Court granted review and reversed in a unanimous opinion by Justice Schreiber.
The Court rejected the notion that the municipal court conviction, though plainly flawed, conclusively showed that there was probable cause to prosecute. That absolute rule, embodied in the 1938 Restatement of Torts and followed by many jurisdictions, was “obvious” in its “inequity.” “The better principle,” Justice Schreiber said, was that a conviction “raises a rebuttable presumption of probable cause.” At least six other jurisdictions followed that rule.
On the facts of the case, there was no basis for finding probable cause based on the municipal court conviction. The judge there had found the food inedible, but convicted plaintiffs based on “the irrelevant fact” that plaintiffs did not order other food or pay for the bad fish and then sue the restaurant. Since the probable cause finding was invalid, the Court reversed the summary judgment for defendant and remanded the case for trial.
All these years later, the principle of Lind v. Schmid has remained valid. For the plaintiffs, the bad taste left by their prosecution lasted far longer than that of the bad fish.