Desmond v. Fawcett

• Decision Date: 28 February 1917
• Citation: 226 Mass. 100,115 N.E. 280
• Parties: DESMOND v. FAWCETT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 100

115 N.E. 280

DESMOND

v.FAWCETT et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 28, 1917.

Exceptions from Superior Court, Middlesex County; J. H. Hardy, Judge.

Action by Timothy Desmond against Robert Fawcett and another. On plaintiff's exceptions to order directing verdict for defendants. Exceptions sustained.

F. W. Dallinger and T. W. Cunningham, both of Boston, for plaintiff.

H. H. Pratt, of Boston, for defendants.

LORING, J.

At the argument the plaintiff waived all exceptions which had to do with the second and third counts. The remaining count was for malicious prosecution. At the trial the judge directed a verdict for the defendants and the case is here on exceptions to that ruling and to the exclusion of evidence offered by the plaintiff.

The facts bearing on these exceptions were in substance these: The defendants Robert and Robert J. Fawcett (father and son and partners in business) had borrowed of the plaintiff several sums of money amounting in the aggregate to $1,000. In June, 1909, the plaintiff was pressing them for payment. At the defendants' request the plaintiff went to their store on the 5th, 7th, 8th and 9th of June of that year. When the plaintiff went to the store on the 9th he found the son. The son soon after left telling the plaintiff that his father would be in shortly. While the plaintiff was waiting the father rushed in and accused him of taking money from their (the defendants') cash drawer. The son returned soon after and joined in the accusation. The plaintiff denied taking the money. Two days later the defendants wrote the plaintiff that they had come to the conclusion that they needed $1,000 to reimburse them for their loss and that if it was not paid within two days they would proceed. No money being paid to the defendants by the plaintiff the father made a complaint to the district court charging the plaintiff with larceny of money from them; he was tried and found guilty but on appeal he was acquitted ‘prior to the date of the writ in the present action.’ Thereupon this action for malicious prosecution was brought. At the trial the plaintiff testified that he did not take any money belonging to the defendants; ‘that the testimony of the two Fawcetts in the district court as to the alleged larceny was false; that no testimony as to his committing the larceny charged was offered by the prosecution in the district court except that of the two Fawcetts.’ Beyond this the bill of exceptions does not set forth the testimony on which the plaintiff was convicted in the court below.

In addition to the foregoing the following evidence was introduced by the plaintiff without objection on the part of the defendant namely: After the entry of the criminal complaint the defendants (in the present case) brought a civil action against the plaintiff (in the present case) to recover $3,000 which they alleged the plaintiff had stolen from them ‘during the three years preceding June 9, 1909, and which included the amounts made the basis of the criminal complaint.’

The bill of exceptions states that the plaintiff ‘also offered to prove’ that in that civil action both defendants testified ‘that for about a year and two months prior to June 9, 1909’ (the day on which the accusation of larceny was made), they had missed money from their money drawer ‘had no suspicion as to the guilty party and made no efforts to discover the thief’; ‘that for all that period the plaintiff had been in their store practically every day coming about 10 o'clock in the morning and staying until noon or afternoon.’ The period of ‘about a year and two months prior to June 9, 1909,’ begins about April 9, 1908, and ends June 9, 1909. Following the statement of this offer of proof the bill of exceptions states: ‘The evidence offered was excluded and the plaintiff duly excepted.’

The bill of exceptions then states that the plaintiff also ‘offered to prove’ that for the period beginning April 22, 1908, and ending April 17, 1909, he (the plaintiff) was employed on the bridges between Boston and Cambridge from 8 o'clock in the morning until 5 o'clock in the afternoon and that he did not leave his working place at the dinner hour but ate his dinner there and that during that period he was absent from the bridges ‘only about fifty working days.’ The period covered by this offer of proof was a period of about a year lacking five days in length and was part of the year and two months mentioned in the first offer of proof. The way in which the plaintiff offered to prove these matters was by the testimony of the bridge commissioner of Cambridge and various employés working on the bridges in question and by their time books and records. Following the statement of this offer of proof the bill of exceptions states ‘the evidence offered was excluded by the court and the plaintiff duly excepted.’

Where a defendant without having probable cause for so doing maliciously makes a complaint (to a court having jurisdiction of the matter) charging the plaintiff with having committed a crime and the plaintiff is acquitted, it is settled that he has an action against the defendant for compensation. Justice in such a case could not do less than that.

On the other hand where a defendant has cause to believe that a crime has been committed by the plaintiff he ought not to be subject to an action if having probable cause and acting in good faith he makes a complaint to the proper court or magistrate charging the plaintiff with that crime. It is the duty of every member of the community to see to it that crime is punished. Public policy as well as justice requires that in such a case (i. e., where there is probable cause and good faith in making the complaint) the complainant should not be harassed.

It is not easy in every case to draw the line between these correlative and to some extent conflicting rights and duties. The case at bar is a case where it becomes necessary to consider in one connection at least where that line should be drawn.

It is settled that a plaintiff cannot maintain an action for malicious prosecution until the criminal proceedings he complains of have ended and unless they have ended in his favor. So far as that requisite is concerned it is settled that where the defendant (in the subsequent action) was convicted below but acquitted on appeal the criminal proceedings have ended in his favor.

But it is also settled (in this commonwealth and generally in other jurisdictions) that a conviction below even though there is an acquittal on appeal (nothing more appearing) is final in favor of the defendant (in the subsequent action) upon the issue of probable cause. The leading cases on that point are Whitney v. Peckham, 15 Mass. 243, and Reynolds v. Kennedy, 1 Wils. 232, on the authority of which Whitney v. Peckham was decided. The general proposition is abundantly established by authority. For collections of cases on the point generally see Saunders v. Baldwin, 112 Va. 431, 71 S. E. 620, Ann. Cas. 1913B, 1049, and a note to that case in 34 L. R. A. (N. S.) 958, a note to Cloon v. Gerry, 13 Gray, 201, in 1 Ames, Select Cases on Torts, 585; Newell, Malicious Prosecution, 284 et seq.; 19 Am. & Eng. Ency. 64; and 26 Cyc. 42, note.

In some jurisdictions (see Skeffington v. Eylward, 97 Minn. 244, 105 N. W. 638,114 Am. St. Rep. 711;Nehr v. Dobbs, 47 Neb. 863, 66 N. W. 864;Olson v. Neal, 63 Iowa, 214, 18 N. W. 863; and see in that connection Goodrich v. Warner, 21 Conn. 432;Richter v. Koster, 45 Ind. 440;Nicholson v. Sternberg, 61 App. Div. 51,70 N. Y. Supp. 212) the rule has been relaxed and it is held that conviction below followed by acquittal on appeal is only prima facie evidence of probable cause on the part of the defendant in the subsequent action. There is an intimation to that effect in Bacon v. Towne, 4 Cush. 217, 236. But it is contrary to the great weight of authority generally and to the opinions of this court in Cloon v. Gerry, 13 Gray, 201, and Dennehey v. Woodsum, 100 Mass. 195, and to the decision in the subsequent case of Morrow v. Wheeler & Wilson Mfg. Co., 165 Mass. 349, 43 N. E. 105. The typical case to which the rule of Whitney v. Peckham applies is where the complaint was submitted to the magistrate on the same evidence on which the defendant acted in making it. In such a case conviction by the magistrate establishes the existence of probable cause on the part of the defendant and is not prima facie evidence of it only. If the intimation in Bacon v. Towne were law in this commonwealth the order of the presiding judge directing a verdict for the defendant would have been wrong because the presumption is prima facie and not final. But we are of opinion that this intimation in Bacon v. Towne is not law and that the exception to the ruling ought not to be sustained on this ground.

Although in the ordinary case (that is to say, where nothing further appears) conviction below followed by acquittal above establishes in favor of the defendant (in the subsequent action) the existence of probable cause, that rule ought not to apply in a case where the conviction below was procured by ‘fraud, conspiracy, or subornation in its procurement,’ to quote the words of Chief Justice Shaw in Cloon v. Gerry, 13 Gray, 201, 203. This must be so on principle and as matter of decision this is established by the very great weight of authority.

On principle a defendant when sued for malicious prosecution ought not to be allowed to invoke for his protection upon the issue of probable cause a conviction by the inferior magistrate when that conviction was procured by ‘fraud, conspiracy or subornation in its procurement.’ It is elementary that no defendant can set up in defence his own fraud or anything procured by his own fraud.

Griffis v. Sellars, 20 N. C. 315, is the only case to the contrary in which an attempt has been made to give a reason for the proposition that even where procured by his own...