Clark v. Eastern Massachusetts St. Ry.

Decision Date12 January 1926
PartiesCLARK v. EASTERN MASSACHUSETTS ST. RY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Essex County; Edw. T. Broadhurst, Judge.

Action by George E. Clark against the Eastern Massachusetts Street Railway. Judgment for plaintiff, and defendant brings exceptions. Exceptions sustained.A. B. Rigney, of Boston, for plaintiff.

A. Sweeney, of Lawrence, for defendant.

WAIT, J.

[1] The defendant instituted criminal proceedings against the plaintiff accusing him of larceny by retaining fares received by him while in charge for the defendant of a ‘one man’ car at Haverhill. After an acquittal, the plaintiff brought suit for malicious prosecution. To maintain his action it was necessary to prove that the defendant, or those acting for it and for whom it was responsible, instigated the criminal proceedings, that in so doing it was acting maliciously and without probable cause, and that the plaintiff had been acquitted. The defendant did not contest the first and the last; but it did contest that it had acted maliciously or without probable cause to believe the plaintiff guilty; and it offered much evidence to show that it acted throughout in reliance upon and in accord with the advice of counsel thoroughly familiar with the facts known to the defendant.

In the course of the trial the defendant excepted to the admission of testimony that the plaintiff was familiar with a rule of the company to the effect that persons offering anything other than the exact fare should be given change for the amount tendered and should be required themselves to place the proper fare in the fare box, and that he observed this rule; and of testimony in regard to his reputation. It excepted also to the exclusion of testimony of O'Donoghue, a superintendent and the manager of the Haverhill Division, that on the Saturdays of a series of weeks when he had laid off the plaintiff the receipts from the car were greater by about $15 each day than the average turned in by the plaintiff for the same trips on the Saturdays of the several weeks before the layoff, and to the exclusion of testimony of Fritch, assistant general manager, that he had been told by O'Donoghue of the difference in receipts, and that he had considered it and given it weight in deciding whether to authorize the prosecution.

The defendant's exception to the refusal to strike out the testimony of Steed in regard to the reputation of the plaintiff must be sustained.

The ordinary rule, that the reputation of a party in a civil action is inadmissible, does not apply in actions for malicious prosecution of a criminal charge (Bacon v. Towne, 4 Cush. 217, 240, 241), if it is known to the person responsible for the complaint (McIntire v. Levering, 148 Mass. 546, 20 N. E. 191,2 L. R. A. 517, 12 Am. St. Rep. 594;Geary v. Stevenson, 169 Mass. 23, 47 N. E. 508), and only so (Lewis v. Goldman, 241 Mass. 577, 136 N. E. 67, 24 A. L. R. 260). Evidence, therefore, was admissible that the plaintiff's reputation was good, and that this was known to the defendant. The witness, however, testified in direct examination on this point no more than that so far as he knew the plaintiff had a good...

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10 cases
  • Commonwealth v. Boris
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 1, 1944
    ... ... STANLEY H. BORIS (and two companion cases [1]). Supreme Judicial Court of Massachusetts, Essex.December 1, 1944 ...        October 5, 1944 ...        Present: FIELD, C ... Commonwealth v ... Rogers, 136 Mass. 158 ... Commonwealth v. Porter, ... 237 Mass. 1 ... Clark v. Eastern Massachusetts Street ... Railway, 254 Mass. 441 ... We do not decide that the good ... ...
  • Com. v. Connolly
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 28, 1970
    ...private opinion of a witness that is admissible. Commonwealth v. De Vico, 207 Mass. 251, 253, 93 N.E. 570. See Clark v. Eastern Mass. St. Ry., 254 Mass. 441, 443, 150 N.E. 184; Leach and Liacos, Handbook of Massachusetts Evidence, p. 252. The excluded question was not directed to Chwalek's ......
  • Commonwealth v. Boris
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 1, 1944
    ...122 Mass. 501;Commonwealth v. Rogers, 136 Mass. 158;Commonwealth v. Porter, 237 Mass. 1, 129 N.E. 298;Clark v. Eastern Massachuetts Street Railway, 254 Mass. 441, 150 N.E. 184. We do not decide that the good reputation of a man may not be shown by the absence of discussion of his character ......
  • Com. v. Arthur
    • United States
    • Appeals Court of Massachusetts
    • August 6, 1991
    ...See Commonwealth v. O'Brien, 119 Mass. 342, 345-346 (1876); Walker v. Moors, 122 Mass. 501, 504-505 (1877); Clark v. Eastern Mass. St. Ry., 254 Mass. 441, 443, 150 N.E. 184 (1926). The judge, however, appeared to confuse this legitimate effort to discredit the impeaching witness with the fo......
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