Desmond v. Fawcett
| Decision Date | 28 February 1917 |
| Citation | 226 Mass. 100 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | TIMOTHY DESMOND v. ROBERT FAWCETT & another. |
October 18, 1916.
Present: RUGG, C.
J., LORING, BRALEY PIERCE, & CARROLL, JJ.
Malicious Prosecution, Probable cause. Practice, Civil, Offer of proof. Evidence, Offer of proof.
In an action for malicious prosecution in causing the plaintiff to be prosecuted on false charges of larceny made by the defendants on which he was convicted in a district court and on appeal to the Superior
Court was acquitted, the case may be taken out of the rule in Whitney
v. Peckham, 15 Mass. 243 , by showing either that the plaintiff was convicted in the district court solely upon the false testimony of the defendants or that the defendants procured the plaintiff's wrongful prosecution and conviction in pursuance of a fraudulent conspiracy to prevent him from collecting from them a just debt due to him, and on one of those two things being shown it may be found that the prosecution was without probable cause.
In the same case it was held that the judge erred in excluding evidence offered by the plaintiff which tended to prove a fraudulent conspiracy to accuse him falsely in the district court.
In the case stated above the plaintiff made two offers of proof, and this court in determining the question whether the evidence offered was excluded erroneously, considered the facts stated in both offers of proof and what would have been proved by such evidence combined in one offer of proof. Treating in this way the offers of proof as one, it was held that the plaintiff offered to show that the whole scheme of the defendants including the conviction in the district court, was a fraudulent conspiracy from the beginning.
Collection and discussion by LORING, J., of authorities upon probable cause as a defence to an action for malicious prosecution in cases where the plaintiff was convicted in a lower court and was acquitted on appeal.
TORT in three counts, the first for alleged malicious prosecution, the second for alleged extortion and the malicious institution and prosecution of a civil action and the third for alleged conspiracy to harass the plaintiff and extort money from him by criminal prosecutions and civil actions. Writ dated November 10, 1911.
In the Superior Court the case was tried before Hardy, J. The course of the trial is described in the opinion. The judge ordered a verdict for the defendants on all three counts of the plaintiff's declaration; and the plaintiff alleged exceptions. The plaintiff in his brief expressly waived all exceptions applying to the second and third counts.
F. W. Dallinger, for the plaintiff. H. H. Pratt, for the defendants, submitted a brief.
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 fifth, seventh, eighth and ninth of June of that year. When the plaintiff went to the store on June 9 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 Third District Court of Eastern Middlesex, charging the plaintiff with larceny of money from them; he was tried and found guilty, but on appeal to the Superior Court 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 defendants, 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 had made no efforts to discover the thief; that for all that period the plaintiff had been in their store practically every day, coming about ten o'clock in the morning and staying till 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 eight o'clock in the morning until five 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 employees 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, 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 subjected 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 (that is, 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 plaintiff (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, 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. Encyc. of Law 64, and 26 Cyc. 42, note.
In some jurisdictions (see Skeffington v. Eylward, 97 Minn 244; Nehr v. Dobbs, 47 Neb. 863; Olson v. Neal, 63 Iowa, 214; and see in that connection Goodrich v. Warner, 21 Conn. 432; ...
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