Robinson v. Van Auken

• Citation: 76 N.E. 601,190 Mass. 161
• Parties: ROBINSON v. VAN AUKEN.
• Decision Date: 04 January 1906
• Court: United States State Supreme Judicial Court of Massachusetts

190 Mass. 161

76 N.E. 601

ROBINSON v. VAN AUKEN.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1906

COUNSEL

Wm D. Chapple, for plaintiff.

Clarence W. Rowley, for defendant.

OPINION

KNOWLTON C.J.

This case was submitted to a jury on two counts; one for slander and the other for false imprisonment. The alleged slander was in making a charge of larceny against the plaintiff in the presence of a police officer, whom the defendant induced to arrest and imprison her. The judge ruled in favor of the defendant that the occasion was privileged, and that the defendant was not liable if he made the charge in good faith and without malice. He said: 'And so you will see that he would be excused, so far as the count for slander is concerned, unless, in saying what he did to the officer at the time he said it, he said it, not in good faith, but said it wantonly, and recklessly, and maliciously, in the sense that he did it out of entire disregard to the rights of the person whom he was accusing.' We are of opinion that the defendant has no good ground of exception to this instruction. The protection of a privilege of this kind is lost by an abuse of the privilege. Bradley v. Heath, 12 Pick. 163, 22 Am. Dec. 418; Brow v. Hathaway, 13 Allen, 239.

The defendant contends that there was no evidence that would warrant the submission to the jury of the question whether the defendant acted in bad faith and with actual malice in making the charge. While the evidence on this point would have well warranted a finding that he was acting within his privilege, the defendant himself testified that he got angry on the occasion when he made the charge, and, when asked what his feelings towards the plaintiff were, answered: 'I was mad--a little mad--at that time.' The plaintiff testified to his conduct indicating the same thing, and we think it was a question of fact for the jury whether he was acting in good faith or in part from malice.

The defendant's fifth request for instructions includes the question whether the evidence warranted the jury in finding that the material allegations of the declaration were proved. It was not shown that the exact words charged were spoken and the question is whether the substance of the language was proved. The plaintiff was not bound to prove all the words set out in the declaration. It was enough if she proved the substance of such of these words as were necessary to constitute a charge of larceny. Clark v. Brown, 116 Mass. 504; Whiting v. Smith, 13 Pick. 364. While the form of the language used by the defendant was not very particularly inquired about by the counsel on either side, and the statements were rather general, there can be no doubt that in a variety of forms the defendant, in the presence of the police officer, charged the plaintiff with a larceny of money. A part of the language alleged in the declaration to have been spoken is: 'I charge her with the larceny of my money.' The plaintiff...