Carere v. F.W. Woolworth Co.

• Decision Date: 12 April 1927
• Citation: 259 Mass. 238,156 N.E. 55
• Parties: CARERE v. F. W. WOOLWORTH CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 238

156 N.E. 55

CARERE

v.F. W. WOOLWORTH CO.

Supreme Judicial Court of Massachusetts, Suffolk.

April 12, 1927.

Exceptions from Superior Court, Suffolk County; L. S. Cox, Judge.

Action of tort by Luigi Carere against the F. W. Woolworth Company to recover for assault, for false imprisonment, and for malicious prosecution. Vedrict for plaintiff, assessing damages on each court alleged in the declaration, and defendant excepts. Verdict on counts for assault and for false imprisonment sustained. Verdict on count for malicious prosecution set aside, and exceptions to rulings on malicious prosecution sustained.

Defendant submitted the following requests for instructions, which were refused:

‘4. There is no evidence that any perjury was committed by Walker or Orton, or any fraud practiced upon the municipal court.

‘5. Upon the evidence the plaintiff was denied no opportunity to present all the facts to the lower court, and he did present them. No fraud, therefore, was practiced on the court or on him.

‘6. The conviction of the plaintiff in the lower court is conclusive evidence that the defendant here had probable cause for the prosecution. There is no evidence of fraud, perjury, subornation, or conspiracy on the part of this defendant.’J. F. O'Connell, of Boston, for plaintiff.

A. S. Phillips, of Fall River, for defendant.

WAIT, J.

The defendant contends that there was error (1) in refusing to grant its motion for a directed verdict for the defendant; (2) in refusing to give the instructions asked in its requests numbered 4, 5, and 6; and (3) in parts of the charge to the jury.

[1] 1. The declaration contained three counts, for assault, for false imprisonment, and for malicious prosecution. The motion for a directed verdict did not discriminate between these counts. It prayed that a general verdict for the defendant be ordered. There was evidence on the counts for assault and for false imprisonment which was properly for the jury to consider; the judge, therefore, could not rightly direct a general verdict for the defendant. There was no error in his refusal.

[2] 2. The plaintiff was found guilty on the complaint made against him in the municipal court of the city of Boston, but in the superior court, on appeal, was found not guilty. The defendant contends that the finding in the municipal court establishes that there was probable cause for instituting the complaint, and that, consequently, a verdict for malicious prosecution in bringing and prosecuting it cannot be sustained.

This court in Desmond v. Fawcett, 226 Mass. 100, 115 N. E. 280 L. R. A. 1917D, 408, after a discussion of all the earlier cases in Massachusetts and of decisions elsewhere, established as the law of this commonwealth, that a judgment of guilty found by a lower court was conclusive proof of probable cause to institute the prosecution, unless that judgment was obtained solely by perjured testimony given in person by the defendant charged with malicious prosecution or procured by him to be given by others. A declaration in a suit for malicious prosecution, which shows by necessary implication that the plaintiff once has been found guilty in a court of competent jurisdiction of the offence charged, although later found not guilty on appeal or review, is bad on demurrer (Wingersky v. E. E. Gray Co., 254 Mass. 198, 150 N. E. 164); and it is not saved by a general allegation that ‘the earlier conviction was obtained by fraud, conspiracy, perjury, and subornation of perjury on the part of the defendant's agents or servants' (Dunn...