Geary v. Stevenson

• Citation: 47 N.E. 508,169 Mass. 23
• Parties: GEARY v. STEVENSON.
• Decision Date: 16 June 1897
• Court: United States State Supreme Judicial Court of Massachusetts

169 Mass. 23

47 N.E. 508

GEARY v. STEVENSON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 16, 1897

COUNSEL

Jas A. McGeough, for plaintiff.

Sherman L. Whipple and William R. Sears, for defendant.

OPINION

LATHROP J.

There is nothing in this case to show that the defendant had anything personally to do with the arrest or imprisonment of the plaintiff, or knew anything about it. He is sought to be held liable for the acts of one Tholley, who, although an employé of the defendant, did the acts complained of, as the defendant contended, while acting under the control and direction of one Kendall, a police officer. There are various exceptions to the exclusion of evidence which we are of opinion must be overruled. Some of these go merely to the question of damages, and, as there was a verdict for the defendant, these are now immaterial. Poland v. Brownell, 131 Mass. 138; Sullivan v Railway Co., 162 Mass. 536, 39 N.E. 185; Oak Island Hotel Co. v. Oak Island Grove Co., 165 Mass. 260, 42 N.E. 1124. What Tholley said the day after the arrest is inadmissible on two grounds. No offer of proof was made of what the plaintiff expected to prove. McGuire v Manufacturing Co., 156 Mass. 324, 326, 31 N.E. 3. Further, evidence of the declarations of Tholley after the event were inadmissible to bind the defendant. Williamson v. Railroad Co., 144 Mass. 148, 10 N.E. 790; McKinnon v. Norcross, 148 Mass. 533, 20 N.E. 183; Railroad Co. v. O'Brien, 119 U.S. 99, 7 Sup.Ct 118. This covers also the declarations of Tholley alleged to have been made in the court house on the morning of the plaintiff's discharge. The exceptions state that the plaintiff offered to show by his mother and sister "that prior to this affair he had never been arrested nor complained of for any crime, and that he had a good reputation." This evidence, we are of opinion, was rightly excluded. In civil proceedings, evidence of this kind is, by the great weight of authority, held not to be admissible, unless the character of a party is directly in issue, as it is in actions of libel or slander, seduction, and malicious prosecution. In other cases the general rule applies that the character of a party is immaterial, and evidence of it is inadmissible, even though the cause of action is one for which a criminal prosecution might be brought, or where the offense set up in justification involves a crime. Among the numerous cases which have come before the courts may be cited the following, where this rule has been applied: Arson, or a similar statutory offense,--Schmidt v. Insurance Co., 1 Gray, 529, 535; Insurance Co. v. Hazen, 110 Pa.St. 530, 1 A. 605; Thayer v. Boyle, 30 Me. 475; Gebhart v. Burkett, 57 Ind. 378; assault and battery,--Bruce v. Priest, 5 Allen, 100; McCarty v. Leary, 118 Mass. 509; Day v. Ross, 154 Mass. 13, 27 N.E. 676; Porter v. Seiler, 23 Pa.St. 424; Thompson v. Church, 1 Root, 312; Givens v. Bradley, 3 Bibb. 192; Cummins v. Crawford, 88 Ill. 312, 318; Schaeffer v. Oppenheimer, 9 N.Y.St.Rep. 688; criminal conversation,--Pratt v. Andrews, 4 N.Y. 493; Norton v. Warner, 9 Conn. 172; divorce, where a crime is charged,--Humphrey v. Humphrey, 7 Conn. 116; Lockyer v. Lockyer, 1 Edm.Sel.Cas. 107; false imprisonment,--Downing v. Butcher, 2 Moody & R. 374; Russell v. Shuster, 8 Watts & S. 308; fraud,--Heywood v. Reed, 4 Gray, 574; Gough v. St. John, 16 Wend. 646; Potter v. Webb, 6 Greenl. 14; Simpson v. Westenberger, 28 Kan. 756; wrongful appropriation of property,--Wright v. McKee, 37 Vt. 161; Smets v. Plunket, 1 Strob. 372. The plaintiff relies in support of his exception on the case of McIntire v. Levering, 148 Mass. 546, 20 N.E. 191. But the only point decided in that case was that in an action for malicious prosecution the plaintiff was entitled, on the issue of probable cause, to show his good reputation, if this was known to the defendant. This decision followed numerous other decisions, and affirmed a well-recognized exception to the general rule. We find nothing in the language used which warrants the plaintiff's contention that in a civil action, wherever a crime is committed, the plaintiff is entitled to show what his general reputation is. Bacon v. Towne, 4 Cush. 217, which is cited in McIntire v. Levering, is also an action for malicious prosecution. Howland v. Manufacturing Co., 156 Mass. 543, 31 N.E. 656, was an action for libel, which is also generally considered an exception to the general rule. The court, after citing some New York cases to the point that if the commission of a crime is charged in the libel, and the defendant offers proof of the charge, the plaintiff cannot show his previous good reputation in answer to the evidence of his guilt, refers to the case of Downey v. Dillon, 52 Ind. 442, as making a distinction between cases in which the charge sought to be proved is of the commission of a crime and those in which the charge is of smaller magnitude. It is then said, "We are aware of no well-considered cases which go further than that." We do not understand this case as intending to lay down a general rule applicable to all offenses, but merely as deciding that, if reputation was admissible in an action of libel, the plaintiff had not brought his case within even the limited rule stated by the Indiana case. The reason given for the exclusion of evidence of reputation in Lamagdelaine v. Tremblay, 162 Mass. 339, 39 N.E. 38, that it was held by this court in Howland v. Manufacturing Co., 156 Mass. 543, 31 N.E. 656, "that on principle as well as authority evidence of good reputation is not competent to show that one is not guilty of a dishonorable or unlawful...