Burick v. Boston Elevated Ry. Co.

• Decision Date: 26 February 1936
• Citation: 200 N.E. 281,293 Mass. 431
• Parties: BURICK v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 431

200 N.E. 281

BURICK

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 26, 1936.

Action of tort by Samuel Burick against the Boston Elevated Railway Company. Finding for defendant. From an order dismissing a report and the petition to establish the report, plaintiff appeals.

Affirmed.

Appeal from Appellate Division of District Court, Northern District; Simoneau, Judge.

J. Riceman, of Boston, for plaintiff.

RUGG, Chief Justice.

This action of tort for malicious prosecution was brought in the District Court of Chelsea. The writ is dated the twenty-eighth day of July, 1932. The first matter printed in the record is entitled ‘Report as Amended.’ It is signed by the trial judge. It appears to have been filed on June 27, 1934, but according to the docket entries was recommitted by the Appellate Division for correction or other amendment, and with amendments to findings and rulings by the trial judge was filed on December 11, 1934. That constitutes the report heard by the Appellate Division; it was ordered dismissed on March 27, 1935. The opinion accompanying that order has been transmitted to us.

The trial judge made a finding of facts which so far as material to the grounds of this decision is as follows: On January 15, 1930, the plaintiff, who lives in Roxbury, boarded a street car operated by the defendant and bound for Dudley Street, and at Dudley Street boarded an elevated train for Devonshire Street, and then a train for Bowdoin Square. Immediately after leaving the train he went to a booth at Bowdoin Square Station, got a transfer and walked a few feet away from the booth, then returned and got another transfer. He went out of the station and boarded a bus also operated by the defendant and rode to Kendall Street. At the time the plaintiff obtained the transfers, two employees of the defendant whose duties were to prevent the ‘infringement’ of the transfer privileges, observed the plaintiff take the transfers, followed him to the bus, boarded it and also rode to Kendall Street. When the plaintiff got off the bus, they took a transfer from the operator of the bus, got off the bus and later accosted the plaintiff, went with him to his place of employment and got his name and address from his employer, as the plaintiff made it appear to them that the could not speak the English language. The two transfers obtained by the plaintiff at the Bowdoin Square Station were produced in evidence. The trial judge found also that a complaint was made to the Municipal Court of the City of Boston by one of these employees against the plaintiff for larceny of a ‘transfer check, the property of the Boston Elevated Railway Company,’ and on January 30, 1930, after trial, the plaintiff was found not guilty. The trial judge ruled upon the foregoing facts that there was probable cause to believe that the plaintiff was guilty of the offence of larceny of the transfer check, and that the prosecution of the plaintiff in the Municipal Court of the City of Boston was without malice. He found for the defendant.

These findings of fact appear to be supported by the evidence set forth in the record. They must be accepted as true. Schon v. Odd Fellows Building Association, 255 Mass. 465, 467, 152 N.E. 55;Moss v. Old Colony Trust Co., 246 Mass. 139, 143, 140 N.E. 803;Kennedy Bros., Inc., v. Bird, 287 Mass. 477, 484, 192 N.E. 73.

The plaintiff requested rulings of law to the effect (1) that he had sustained the burden of proof that the defendant caused a criminal complaint to be brought against him without probable cause, which was terminated in his favor, (2) that the plaintiff was entitled to recover damages, and (3) that upon all the evidence no probable cause existed for the criminal prosecution. Those requests were all denied rightly.

It was said respecting malicious prosecution in Stone v. Crocker, 24 Pick. 81, 84, 86: ‘The want of probable cause is the essential ground of this action. Other things may be inferred from this. But this cannot be inferred from any thing else. It must be established by positive and express proof. It is not enough to show that the plaintiff was acquitted of the charge preferred against him, or that the defendant abandoned the prosecution. But the onus probandi is upon the plaintiff to prove affirmatively, by circumstancesor otherwise, as he may be able, that the defendant had no ground for commencing the prosecution. * * * In relation to what in law constitutes probable cause, we adopt the definition of the defendant's counsel. Such facts and circumstances as would induce an ingenuous and unprejudiced man, of common capacity, in the defendant's situation, to believe the plaintiff to be guilty, would justify a criminal prosecution against him.’ Bacon v. Towne, 4 Cush. 217, 238-242;Kidder v. Parkhurst, 3 Allen, 393;Bannon v. Auger, 262 Mass. 427, 435, 160 N.E. 255. It is manifest that there was no error of law in denying the requests. Whether the plaintiff had established want of probable cause was a fact on which the adverse finding of fact by the trial judge was decisive.

The plaintiff has argued that transfers had no value and therefore could not be...