Atkinson v. Birmingham, 5557.

• Decision Date: 10 March 1922
• Docket Number: No. 5557.,5557.
• Citation: 116 A. 205
• Parties: ATKINSON v. BIRMINGHAM et al.
• Court: Rhode Island Supreme Court

116 A. 205

ATKINSON

v. BIRMINGHAM et al.^*

No. 5557.

Supreme Court of Rhode Island.

March 10, 1922.

Stearns, and Sweeney, JJ., dissenting.

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Sarah J. Atkinson against Margaret Birmingham and others. There was a directed verdict for defendants, and plaintiff brings exceptions. Exceptions overruled, and case remitted for entry of judgment on the verdict.

Charles R. Easton, of Providence, for plaintiff.

Washington R. Prescott, of Providence, for defendant Birmingham.

Elmer S. Chace, City Sol., of Providence (Henry C. Cram, Oscar L. Heltzen, and Ellis L. Yatman, Asst. City Sols., all of Providence, of counsel), for defendants Costigan and Hindmarsh.

SWEETLAND, C. J. This is an action of trespass upon the case for the alleged malicious prosecution of the plaintiff by the defendants Margaret Birmingham, James J. Costigan, a captain of police of Providence, and George M. Hindmarsh, a police officer of said city. The case was tried in the superior court before Mr. Justice Brown, sitting with a jury. At the conclusion of the evidence said justice upon motion of the defendants directed a verdict in their favor. The cause is before us upon the plaintiff's exception to this action of said justice. In her bill the plaintiff has included exceptions to other rulings of said justice made in the course of the trial. The plaintiff has not pressed before us the exceptions last mentioned. As the rulings to which such exceptions were taken did not affect the verdict directed, we assume that the plaintiff has abandoned them.

By the uncontradicted evidence presented at the trial the following facts appear: On the afternoon of December 4, 1918, while walking westerly towards Prairie avenue along the northerly sidewalk on Chester avenue in Providence, the defendant Margaret Birmingham lost from her open handbag a $5 bill and a $2 bill folded together. A little later the plaintiff, Sarah J. Atkinson, while walking easterly on said sidewalk, saw some paper money lying on the ground, picked it up, and said to the witness Crown, who was present, that the money was hers. Later the defendant Birmingham while searching along Chester avenue, learned from the witness Todd that the plaintiff had found some money on the sidewalk. The defendant Birmingham then went to the plaintiff's house and demanded that the plaintiff deliver to her $7, the amount which she had lost. The plaintiff offered to turn over to the defendant Birmingham $2, which the plaintiff claimed was all that she had found. The defendant Birmingham reported her loss and the facts which she had learned to the defendant Costigan, who was captain of the police precinct in which Chester avenue is situated. The defendant Costigan directed his subordinate, the defendant Hindmarsh, to interview the plaintiff, in company with Mrs. Birmingham, and later he directed said Hindmarsh, in company with another subordinate officer named Griffin, to interview the witness Crown, who was present at the time the plaintiff picked up the money on Chester avenue, and also to interview the witness Todd, who saw the plaintiff pick up money from the sidewalk. The defendant Hindmarsh and Officer Griffin reported to Capt. Costigan the result of their interviews with the witnesses Crown and Todd to the effect that Crown said he saw Mrs. Atkinson pick up bills folded together, and that there was more than one bill; that the witness Todd said that on the afternoon in question while she was sitting at a window of her house overlooking Chester avenue she saw the plaintiff pick up money lying on the sidewalk; that Mrs. Atkinson unfolded the money, and she saw that there was more than one bill. Capt. Costigan himself interviewed Mrs. Todd, who repeated the same story that Hindmarsh and Griffin had reported. He also interviewed the plaintiff, who denied that she had found more than a $2 bill and expressed her willingness to deliver that to the defendant Birmingham. Capt. Costigan then reported the above facts to the deputy chief of police and requested that a criminal complaint be made against the plaintiff charging her with the larceny of $7 from Mrs. Birmingham. Upon the complaint of the deputy chief, the district court of the Sixth judicial district issued its warrant, and the plaintiff was arraigned upon the complaint, pleaded not guilty, and was tried. Upon trial the plaintiff was found not guilty by the district court, and thereafter she commenced this action against said Birmingham, Costigan, and Hindmarsh to recover damages for her alleged malicious prosecution by them.

In order to recover against either of these defendants, the plaintiff must establish by a preponderance of evidence that such defendant caused or assisted in causing said criminal prosecution to be instituted against her. As to the defendant Birmingham it appears that she truthfully reported the facts within her knowledge to Capt. Costigan, and that she neither induced nor requested the police authorities to commence said criminal proceeding, nor assisted in its prosecution, save that when summoned by the police she testified as a witness for the complainant As to the defendant Hindmarsh it appears that his sole connection with the matter was to follow the direction of his superior officer and report to such superior officer the result of his interviews with the plaintiff and the witnesses Crown and Todd and later when summoned as a witness he testified as to such interviews. The justice was clearly warranted in ruling that there was no evidence before the jury that either of the defendants Birmingham and Hindmarsh had procured or had assisted in procuring the criminal prosecution of the plaintiff or had recommended or requested the same. There was no error in the ruling of said Justice directing a verdict in favor of the defendants Birmingham and Hindmarsh.

With reference to the defendant Costigan it must be held that he was mainly responsible for the prosecution of the plaintiff. Hereafter in this opinion he will be referred to as "the defendant." In accordance with the practice of the Providence police department, a criminal complaint instituted by the police is ordinarily preferred by the deputy chief of police after consultation with and upon recommendation of the captain of police in whose precinct the alleged offense has been committed and who has made an investigation of the matter. The complaint against the plaintiff was formally made and sworn to by the deputy chief after he had been informed of the facts relied upon by the defendant and had approved of the defendant's conclusion. But the deputy chief was induced to act by reason of the recommendation and request of the defendant.

To warrant holding the defendant liable in this action, the plaintiff must establish by a preponderance of evidence that in prosecuting her upon the charge of larceny the defendant was acting without probable cause and also with malice toward her. From his investigation and the reports received from the investigations of his subordinate officers the defendant might not unreasonably believe that the money which the plaintiff found belonged to the defendant Birmingham; that she found a $5 bill as well as a $2 bill; that at the time of finding...