The action was for malicious prosecution. The plaintiff was in the employ of the defendant, then known as the Riker-Hegeman Company. Two or three weeks prior to the institution of the prosecution a police officer called at the general office of the company and inquired if they had any one in their employ by the name of John A. Wolff, giving his address. He was referred to John E. Wilson, of whom the officer made the inquiry, and stated that the police department had received an anonymous letter signed “ A heartbroken wife ” charging that a man of that name had sold her husband cocaine and that he was employed in one of the Riker-Hegeman stores. Wilson informed the officer that they had such a man in their employ and told him where he was so employed, and also informed the officer that they had missed articles from several of the stores in which Wolff had been employed and the officer replied that they were going to watch Wolff and see if he was selling narcotics, and if they found any articles marked Riker-Hegeman when they searched his place that they would notify him, and Wilson thereupon gave the officer the telephone number of his residence. After watching Wolff the officers searched his apartment and found a phial containing cocaine and arrested Wolff taking him to the station house. Thereafter they communicated with Wilson that in the course of their search they had found a number of articles marked Riker-Hegeman, and Wilson then went with the officers to Wolff’s apartment and identified these articles and went with the officers to the police station where Wolff was then detained on the charge of having narcotics in his possession. Wolff was brought out of his cell and Wilson made a charge against him of grand larceny of these articles. Wolff was arraigned on the charge of grand larceny and held for examination on a short affidavit of the police officer, stating *633that he had arrested Wolff on the charge of grand larceny which he believed he had committed from the information received from John E. Wilson, and requested that Wolff be held until he could produce Wilson and other witnesses. Two days later Wolff was brought before the court for examination and no one appearing against him was discharged. Thereafter Wolff was held in bail for the Special Sessions and convicted of the charge of being a pharmacist and having narcotics in his possession without a license and sentence suspended.
Upon the trial the defendant offered no evidence and the case was sent to the jury with an excellent charge by the trial justice. The most serious question in this case is the liability of the defendant for the act of Wilson. It was shown that Wilson had no personal acquaintance with Wolff, hence had no purpose of his own to serve. He was shown to. have held a position in the general offices of the company and not alone were the facts in relation to his activities in this case proved, but also that he was the head of the employment department. He was clearly acting in the master’s interest and not in his own. I think the plaintiff made a prima facie case. This portion of the case was submitted to the jury in a careful charge, the judge impressing them that they could not find a verdict for the plaintiff unless Wilson was acting within the scope of his employment. The evidence is sufficient to sustain the verdict. It is also clear that Wilson acted without probable cause. He made no investigation to ascertain whether these articles had been purchased, but assumed that as some articles had been missing from the stores in which Wolff was employed any articles found in his possession which had once been the property of the Riker-Hegeman Company must have been stolen. Charges thus recklessly made without investigation imply malice.
It is claimed, however, that the judgment should be reversed, because the plaintiff’s attorney stated in his opening that the defendant was responsible for the charge against the plaintiff of having narcotics in his possession, and in his summation attempted to inject atmosphere in the case to inflame the jury, and also that it was error to allow the details of the search of the premises to be given. This search was not made, however, solely for the purpose of securing evidence in the narcotic *634case, but, at Wilson’s request, was also for the purpose of securing evidence which resulted in the grand larceny charge. What occurred during the search was a part of the res gestos of this case as it was of the narcotic case. Plaintiff’s counsel, did state in his opening that he would show that the defendant was responsible for the anonymous letter, which he failed to do although evidence was brought out that the police officers had by their answers to the plaintiff’s questions, and "exhibiting the defendant’s letterhead, lead him to infer that the defendant was responsible for the charge. In his summation plaintiff’s attorney, after detailing circumstances that were in the evidence, in regard to the writing of the letter, Wilson’s action, and that such a course could have been adopted for the purpose of getting the narcotic squad to search the premises without liability to them, distinctly said: “ I say, of course, it is not proven in this case that that is the fact, but there is the evidence, and that that evidence excited in me that deduction, my mind went to the end. I am led to believe that that may be the very thing that happened in this case.” There was no objection taken to the summation at the trial, nor was any request to charge made bearing upon this phrase. In my opinion to reverse a judgment because we do not think that the inference that counsel drew from the evidence is justified, when he has expressly stated that they are his inferences and not proof, would be going beyond any reasonable requirement.
In my opinion the verdict was not excessive and no reversible error committed. The judgment should be affirmed.
Clarke, P. J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.