Broussard v. Great Atlantic & Pacific Tea Co.
| Decision Date | 02 June 1949 |
| Citation | 324 Mass. 323,86 N.E.2d 439 |
| Parties | JOSEPH BROUSSARD v. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 4, 1949.
Present: QUA, C.
J., LUMMUS WILKINS, SPALDING, & WILLIAMS, JJ.
Malicious Prosecution. Probable Cause.
At the trial of an action against a corporation for malicious prosecution for larceny by one who had been found guilty in a District Court a finding of want of probable cause for the prosecution would not have been warranted although he was acquitted on appeal to the Superior
Court, where there was no evidence that the conviction in the District
Court rested wholly or partially on false testimony of the defendant's employees, or that they procured false testimony to be given by others or prevented the giving of testimony favorable to the plaintiff.
TORT. Writ in the Superior Court dated April 13, 1942. The action was tried before Baker, J.
G. P. Lordan, for the plaintiff. C. W. O'Brien, for the defendant.
The question for decision in this action of tort for malicious prosecution is whether the judge erred in entering a verdict for the defendant under leave reserved.
The incident which gave rise to the present action occurred in the defendant's store at 988 Massachusetts Avenue, Cambridge on the morning of January 31, 1942. The store is of the so called cash and carry type, where a customer selects his merchandise at the various counters and pays for it as he leaves the store after it has been checked by a cashier.
The plaintiff's testimony was as follows: He entered the defendant's store between 9:30 and 10 A.M. for the purpose of meeting his wife with whom he was to do some shopping. His wife was late. At that time there was a sugar shortage and he noticed a sign which read "Sugar, one pound to a customer," and he obtained a pound and paid for it at the cashier's desk. He then went across the street to a First National store to compare prices. He returned to the defendant's store where he met a friend, one Jones, who offered him a cigarette. Having the package of sugar in one hand and an article in the other, he put the sugar in his inside pocket and lit the cigarette. In a few minutes his wife arrived and they made some purchases (including a pound of sugar), paid for them at the cashier's desk, and left the store. Just as they had gotten outside the store, St. George, the defendant's assistant manager, tapped the plaintiff on the shoulder and told him that the manager wanted to see him. He returned with St. George and went into a room in the rear of the store where McVittie, the manager, and several other employees of the defendant were present. McVittie said that he would like to check the plaintiff's packages and the plaintiff told him to "go ahead." The purchases corresponded with the sales slip. While this was being done, St. George put his hand in the plaintiff's inside pocket and pulled out a package of sugar. The plaintiff protested, contending that he had purchased it earlier and that it would not appear on the sales slip which they were checking. McVittie and St. George then accused the plaintiff of stealing, and told him that if he would sign a form admitting the theft they would "forget all about it," and that if he did not sign it they would call a police officer. The plaintiff refused to sign the form and McVittie called a police officer, one Healey, who, after hearing the stories told by the plaintiff and the defendant's employees, refused to make an arrest and told McVittie that he could "swear out" a complaint if he wanted to.
One Gorse, an employee of the defendant, testified that on the day in question he was in charge of the dairy counter where sugar was dispensed; that he handed a bag of sugar to the plaintiff around ten o'clock; that about an hour and a half later he handed a bag of sugar to a woman who later proved to be the plaintiff's wife; and that he told these facts to McVittie at the time of the conference in the back room "after they all got there."
Evidence was introduced by the defendant which differed substantially from the plaintiff's testimony.
The defendant's assistant manager, St. George, "swore...
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Vigeant v. U.S.
..."obtained by fraud or other imposition upon the court")). Massachusetts maintains a similar rule, Broussard v. Great Atl. & Pac. Tea Co., 324 Mass. 323, 86 N.E.2d 439, 440 (1949), which the First Circuit has recognized and applied. See, e.g., Meehan, 167 F.3d at 90-91 (holding that Broussar......