Cook v. Lester

• Decision Date: 09 December 1964
• Docket Number: No. 10595,10595
• Citation: 99 R.I. 28,205 A.2d 143
• Parties: Richard A. COOK v. Harold W. LESTER et al. Ex.
• Court: Rhode Island Supreme Court

Page 143

205 A.2d 143

99 R.I. 28

Richard A. COOK v. Harold W. LESTER et al.

Ex. No. 10595.

Supreme Court of Rhode Island.

Dec. 9, 1964.

Aram K. Berberian, Providence, for plaintiff.

Sarkis Tatarian, City Sol., Joseph T. Little, Asst. City Sol., for City of East Providence.

ROBERTS, Justice.

This is an action on the case for malicious prosecution of the plaintiff in that the defendants charged him with violation of law relating to the operation of motor vehicles on a one-way street. The defendants' demurrer to the declaration was heard by a justice of the superior court, and from his ruling sustaining the demurrer the plaintiff has prosecuted an exception to this court.

The record does not disclose, nor does plaintiff in this court refer to, the particular ground or grounds upon which the trial justice sustained the demurrer. The grounds of the demurrer, however, are quite general and raise, inter alia, the question whether a cause of action for malicious prosecution was stated in the declaration. It is well settled that where any ground of demurrer is valid, this court should confirm the decision of a trial justice sustaining the demurrer. Davis v. Girard, 70 R.I. 291, 38 A.2d 774.

The specific question before us then is whether the declaration states a cause of action against defendants for malicious prosecution. In our opinion, it does not because it is so lacking in clarity and in reasonable certainty as to fail to apprise defendants clearly of the complaint that is being brought against them. McGarry v. Rhode Island Mutual Ins. Co., 90 R.I. 337, 158 A.2d 156.

The declaration alleges, in substance, that defendants instituted a criminal complaint against plaintiff in which he was charged with operating a motor vehicle in the city of East Providence along Broadway at a point between Waterman and Taunton avenues in a southerly direction, 'said highway at said point being a one-way street so-called and the direction aforesaid being contrary to the direction permitted.' It is alleged further that plaintiff was arrested on said complaint and tried thereon in the district court and was adjudged not guilty. It is then alleged specifically that 'There was no probable cause for believing that Broadway, at a point between Waterman Avenue and Taunton Avenue was a one-way street on the ground that there was no statute, ordinance or regulation imposing such a traffic restriction. The absence of the aforesaid restrictions could have been ascertained by the defendants by reference to the statutes, ordinances and rules and regulations in the premises, all of which were public records. In addition, the defendants had the opportunity to ascertain the absence of the aforesaid traffic restriction.'

It is elementary that to state a cause of action for malicious prosecution, allegations must be made that the criminal proceeding was instituted by the defendant with malicious motives and without probable cause, and that the proceeding so instituted terminated in the plaintiff's favor. We are of the opinion that in the instant declaration plaintiff does not allege with the requisite clarity and definiteness that these defendants instituted the complaint without probable cause.

It is well settled that an allegation of want of probable cause, standing alone, is merely a conclusion of law. Brady v. Collom, 75 R.I. 219, 222, 65 A.2d 450, 14 A.L.R.2d 261; Giusti v. Del Papa, 19 R.I. 338, 341, 33 A. 525. Assuming that plaintiff here has alleged a want of probable cause, it is our opinion that nowhere in the declaration is any allegation of fact set out to support that conclusion of law. A close...