Carroll v. Gillespie

• Decision Date: 14 June 1982
• Citation: 14 Mass.App.Ct. 12,436 N.E.2d 431
• Parties: Mary R. CARROLL v. James J. GILLESPIE et al. 1
• Court: Appeals Court of Massachusetts

Page 431

436 N.E.2d 431

14 Mass.App.Ct. 12

Mary R. CARROLL v. James J. GILLESPIE et al. ¹

Appeals Court of Massachusetts, Plymouth.

Argued Jan. 21, 1982.

Decided June 14, 1982.

Robert F. Murphy, Boston, for defendants.

Joseph A. D'Agostino, Marshfield, for plaintiff.

Before GOODMAN, CUTTER and GREANEY, JJ.

GREANEY, Justice.

The plaintiff brought this action to recover damages from the defendants James J. Gillespie (Gillespie) and Gillespie Ford Sales, Inc. (dealership) on six separate theories, including malicious prosecution, abuse of process and slander. At trial in the Superior Court, the defendants filed motions for directed verdicts, Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974), which were denied as to the three claims above. ² The issues were then submitted to the jury by way of special questions. Mass.R.Civ.P. 49(a), 365 Mass. 812-813 (1974). In answer to those questions, the jury found for the plaintiff on the claims for malicious prosecution and abuse of process, and assessed damages in the amount of $7,500 on each claim. The jury found for the defendants on the claim for slander. Judgment was entered on the verdicts in the amount of $15,000, and the defendants appealed. ³ The issue presented is whether the defendants' motions for directed verdicts on the claims for malicious prosecution and abuse of process were properly denied. We hold that they were.

The evidence presented at trial leaves material facts in dispute. See note 10, infra. We therefore view the evidence in the light most favorable to the plaintiff. Willis v. Gurry, 331 Mass. 19, 20, 21-22, 116 N.E.2d 689 (1954). Quaranto v. Silverman, 345 Mass. 423, 424, 187 N.E.2d 859 (1963). Smith v. Eliot Sav. Bank, 355 Mass. 543, 545, 246 N.E.2d 437 (1969). Seelig v. Harvard Coop. Soc., 1 Mass.App. 341, 343-344, 296 N.E.2d 825 (1973). So viewing the evidence, the jury could have found the following facts.

The plaintiff lived with one Frank Carroll in a house which they owned in Marshfield. During the period in issue, Carroll was working in Alliance, Ohio, and the plaintiff made several trips between Marshfield and Alliance, living for various periods in each place. In December, 1975, while in Marshfield, the plaintiff damaged Carroll's car in an accident, and it was taken to be repaired at Gillespie Ford. Due to a mistake, however, the dealership's form order for the repairs was made out in the name of "Fran" (rather than Frank) Carroll. ⁴

Several weeks later, lacking local transportation, the plaintiff joined Carroll in Ohio. She remained there for several months, apparently due in part to the fact that the insurance coverage for the repairs was disputed, and ultimately denied. In the last week of March, 1976, the plaintiff returned to Marshfield, and Carroll sent her the funds necessary to pay for the repairs. The funds were sent in the form of a certified check for $1,500, drawn by Carroll on the First National City Bank of Alliance, Ohio. The check, however, was payable not to the dealership, but to "Mrs. Mary Carroll."

On April 1, 1976, the plaintiff went to the dealership to pick up the car. In payment for the repairs, the plaintiff gave the certified check to the dealership's cashier. The bill totalled $1,425.65, and the cashier returned $74.35 in change. By inadvertence, however, the plaintiff had failed to endorse the check, and the cashier failed to notice that there was no signature on the back. Several days later, the plaintiff left Marshfield and rejoined Carroll in Ohio. ⁵

On April 2, 1976, the dealership deposited the check to its account with the Lincoln Trust Company in Marshfield. On April 12, 1976, the bank returned the check to the dealership with a stamped notation that it lacked the endorsement of the payee. The dealership received the check by April 13, 1976. On April 14, 1976, the dealership redeposited the check. At that time, a signature appeared on the back in the name of "Mrs. Mary Carroll."

On June 16, 1976, the Ohio bank which issued the check asked the plaintiff in Alliance to examine the endorsement. She did so, and stated that the signature was not hers. At the request of the bank, she then signed a form affidavit which stated that she had not endorsed the check nor authorized anyone else to do so; that she had not received any proceeds or benefit from the check; and that the signature of endorsement was a forgery. The Ohio bank then returned the check to the Lincoln Trust Company. On June 24, 1976, Lincoln Trust informed Gillespie by letter that there had been an "alleged forgery of endorsement," and returned the check along with a copy of the plaintiff's affidavit.

On June 25, 1976, Gillespie went to the Plymouth District Court and met with Sergeant Andrew P. Gerard, a Marshfield police officer and the town prosecutor. From the officer's testimony at trial, and his original written report, the account of that meeting most favorable to the plaintiff appears as follows. Gillespie showed the officer the check, the affidavit, and the bank's letter, and told him that he had received a bad check for car repairs from a woman who identified herself as Fran Carroll. Specifically, Gillespie represented that the endorsement on the check had been forged, that "Mrs. Carroll was the person that forged it," and that she had done so "in the ... (dealership) office." He also stated that his son had seen a "for sale" sign on her house, that she was "about to leave for Ohio with the motor vehicle" which the dealership had repaired, and that she also used the name Romanski. ⁶ Gillespie further told the officer that "he wanted his money for the check" and that "he wanted the police to arrest" the plaintiff.

Officer Gerard advised Gillespie, according to "standard policy," that the acts which he alleged amounted to felonies, that these were serious charges, and that they were likely to lead to the plaintiff's arrest. He further informed Gillespie that the police department was "not concerned with the restitution of his monies ... (but with) criminal acts," and that it was "not a collection agency." Gillespie acknowledged that he understood the seriousness of his charges, including the possibility that the plaintiff would be arrested. The officer proceeded to confirm that there was a "for sale" sign on the plaintiff's house and that no one was at home. He then applied for complaints charging the plaintiff with forgery, uttering a false instrument, and larceny by false pretense. ⁷ The complaints issued that same day, along with three warrants for the plaintiff's arrest.

On or about August 13, 1976, the plaintiff returned to Marshfield. Gillespie apparently learned of her return. On August 16, 1976, he called the Marshfield police and told them that she was at home. That evening, two officers went to the plaintiff's home and arrested her. She was placed in the back of the cruiser, taken to the police station, and booked on the outstanding charges. The plaintiff spent that night in jail. She was arraigned the following morning, and then released on bail pending trial.

At the arraignment, the judge asked Officer Gerard to inquire of Gillespie whether he could provide a witness at trial who actually saw the plaintiff sign the check. The officer did so that afternoon, and Gillespie said that he could. At trial on October 19, 1976, Gillespie failed to appear but sent the dealership's cashier, one Joseph Comich, as a witness. Comich testified that he had accepted the check, but could not recall whether he saw the plaintiff endorse it, or whether it was endorsed when he received it. Officer Gerard attempted to consult Gillespie but was told that he could add nothing to the cashier's testimony. Following trial, the plaintiff was acquitted on all three charges.

At the trial of the present action Gillespie was called by the plaintiff. He admitted that when he met with Officer Gerard on June 25, 1976, he did not know who had endorsed the check, and that he currently had "no idea" whether it was the plaintiff who signed it. Gillespie denied telling the officer that the check was signed in the dealership office. At trial, his testimony was that he (Gillespie) "was told" that sometime between April 12 and April 14, 1976, an employee of the dealership went to the plaintiff's house with the check and gave it to Carroll, who took it inside, and returned it bearing an endorsement. On cross-examination, however, he testified that this employee did not see the plaintiff at the house; that the employee did not see who signed the check; and further, that none of the dealership's employees saw the signing of the check at any time.

Gillespie admitted telling Officer Gerard that "I wanted to collect my money," and admitted that this was, in fact, his purpose. ⁸ He denied telling the officer that he wanted the plaintiff arrested, but conceded that he probably said that he "wanted her brought into court." In general, Gillespie took the position that he left the matter "in the incapable (sic) hands of Sergeant Gerard." ⁹

1. Malicious prosecution. In an action for malicious prosecution, "the essence of the tort is ... interference with the right to be free from unjustifiable litigation." Foley v. Polaroid Corp., --- Mass. ---, ---, Mass.Adv.Sh. (1980) 2113, 2120, 413 N.E.2d 711, citing Prosser, Law of Torts § 119, at 834 (4th ed. 1971). The essential element to be proved is that the defendant lacked probable cause to believe that the plaintiff had committed the crime charged, and the plaintiff has the burden of proving that element. Morreale v. DeZotell, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1980) 1419, 1419, 406 N.E.2d 1311, and cases cited.

The defendants argue that the plaintiff's proof was insufficient to support a finding that Gillespie lacked probable cause. In addition, they contend that even if probable cause was lacking, Officer Gerard's official decision to bring the complaints relieved the defendants of responsibility...