Higgins v. Pratt

• Decision Date: 12 September 1944
• Citation: 316 Mass. 700,56 N.E.2d 595
• Parties: HIGGINS v. PRATT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 700

56 N.E.2d 595

HIGGINS

v.PRATT.

Supreme Judicial Court of Massachusetts, Worcester.

Sept. 12, 1944.

Exceptions from Superior Court, Worcester County; Swift, Judge.

Action of tort by Joseph H. Higgins against Ernest W. Pratt for malicious prosecution for violation of G.L.(Ter.Ed.) c. 55, §§ 34 and 34A, arising out of the campaign for election to the board of selectmen at the town meeting of Barre, in which the plaintiff and the defendant were candidates. Verdict for the plaintiff, and defendant brings exceptions.

Exceptions sustained.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and WILKINS, JJ.

F. P. McKeon, of Worcester, and F. W. Hiller, of Barre, for plaintiff.

S. C. Rand, of Boston, D. D. Swain, of Worcester, and F. R. Johnson, of Boston, for defendant.

WILKINS, Justice.

This is an action of tort for malicious prosecution for violation of G.L. (Ter.Ed.) c. 55, §§ 34 and 34A, arising out of the campaign for election to the board of selectmen at the town meeting of Barre held March 4, 1940, in which the plaintiff and the defendant were candidates. The jury returned a verdict for the plaintiff. The defendant's exceptions relate to denial of his motion for a directed verdict, refusal of certain of his requests for instructions, and exclusion of evidence.

Certain facts are not in dispute. About March 2, 1940, two days before election, the plaintiff distributed a printed circular entitled ‘Voters take notice!’ and signed ‘An Interested Taxpayer.’ Much of the circular was laudatory of the plaintiff and his candidacy, but one paragraph, which in fact related to the defendant, although not mentioning his name, was: ‘Is Mr. Higgins's opponent going to pay all the town employees 5¢ a mile to get to work? He is charging that and he is also charging $1.00 per hour for repairing the school building. It's nice to be chairman of different committees and O.K. your own bills.’ At that time Edwin G. Norman, Esquire, a former district attorney of Worcester County, was a practising lawyer with an office in Worcester. He died before the trial. With respect to him the parties filed a stipulation, for what reason it does not appear, which was as follows: ‘Now come the parties hereto and stipulate that the following shall be considered as facts in the case, but not all the material facts are herein agreed to: 1. The late Edwin G. Norman first became counsel for the defendant in the matter of advising him whether the plaintiff had criminally violated General Laws, Chapter 55, Section 34 and/or General Laws, Chapter 55, Section 34A on or about March 3, 1940, and he continued to act as such counselfor the defendant in respect of said Pratt's claim of an alleged criminal violation by Higgins of said Chapter 55, Section 34 and/or Chapter 55, Section 34A until the final conclusion of the criminal proceedings at the Central District Court of Worcester on the 23rd day of April, 1940, which criminal proceedings were instituted by the complaints made, signed and sworn to by said Pratt. 2. Said Norman advised said Pratt to make, sign and swear to said complaints. 3. Prior to, and at the time of the giving of said advice to said Pratt, said Norman did not examine General Laws, Chapter 55, Section 38. 4. When said Norman advised said Pratt to make, sign and swear to said complaints, said Norman was mistaken in law in respect thereto. 5. Said Norman was a member of the Massachusetts Bar for many years and was competent counsel to be consulted by said Pratt as aforesaid. This agreed statement of facts does not preclude the plaintiff from offering evidence at the trial of additional material facts to prove that said advice of counsel does not constitute defense to this action, or from offering any additional evidence to sustain his cause of action. The defendant reserves the right to prove additional facts appropriate to sustain his defense as pleaded.’

On March 15, 1940, the defendant signed and swore to a complaint addressed to the Central District Court of Worcester reading as follows: ‘Ernest W. Pratt * * * on oath complains that reasonable grounds exist for believing that certain laws relating to the assessment, qualification or registration of voters, or to voting lists or ballots, or to primaries, caucuses, conventions and elections or to any matters pertaining thereto, in the Town of Barre in said County, to wit: the annual election of Town Officers in said Town, held March 4, 1940, have been violated. Wherefore your complainant prays this honorable Court that an Inquest may be held to inquire into such alleged violation of Laws.’ The complaint was brought under, and was substantially in the language of, G.L.(Ter.Ed.) c. 55, § 39. This ‘statute was intended to give to the judges of the district courts power to hold election inquests when the public interests seemed to require that an inquest be held, but to leave it to their discretion, as judicial officers, in each instance whether to hold such inquest or not.’ Irwin v. Justice of Municipal Court of Brighton Dist. of City of Boston, 298 Mass. 158, 160, 10 N.E.2d 92, 93. The judge of the District Court exercised his discretion and held such inquest on March 20. As required by G.L.(Ter.Ed.) c. 55, § 40, an assistant district attorney attended and examined the witnesses. Fourteen witnesses, including the defendant but not the plaintiff, gave testimony, which was reduced to writing by a stenographer. G.L.(Ter.Ed.) c. 55, § 42. The evidence related entirely to distribution of the campaign circular and its accuracy. No reference was made by anyone to the population of Barre. On April 17 the judge of the District Court filed a report in the Superior Court, Worcester County, under G.L.(Ter.Ed.) c. 55, § 42, which provides, ‘Such court or trial justice * * * if he finds that the law has been violated, shall report to the superior court all the material facts and the names of any persons guilty of any such violation.’ The report in part read: ‘The testimony offered before me showed that while Pratt was chairman of the Water Supply Committee and had done some work for the Water Department of the Town of Barre, he did not O.K. any of his own bills, that he did not charge the town 5¢ a mile to get to work nor did he charge $1.00 an hour for repairing the school building except for roofing work that was done on that building, and that his ordinary charge was 75¢ an hour. This circular was not signed in the manner required by G.L.(Ter.Ed.) Chap. 55, Sec. 34 but simply with the words, ‘An Interested Tax Payer.’ Not only did Higgins distribute and cause to be distributed the circulars in question but there was testimony that he had caused it to be made and published. Upon the evidence submitted at the inquest, at which said Higgins was not called as a witness, I find that there has been a violation of the provisions of G.L.(Ter.Ed.) Chap. 55, Sections 34 and 34A and that said Joseph H. Higgins appears to by guilty of such violations. As required by the provisions of G.L.(Ter.Ed.) Chap. 55, Section 44, I have issued process for his apprehension; to wit, summonses requiring him to appear to answer in the Central District Court of Worcester to complaints alleging violations of the provisions of G.L.(Ter.Ed.) Chap. 55, Sections 34 and 34A.'

On April 16, the defendant had gone to the clerk's office of the District Court, and sworn to two complaints prepared by the clerk. One charged that the plaintiff on March 2, 1940, ‘did intentionally distribute, or cause to be distributed a circular or poster designed or tending to injure or defeat a candidate for election to a public office, by criticising his personal character or political action, contrary to the provisions of Chapter 55, Sec. 34 of G.L.’ The other charged that the plaintiff on the same day ‘did cause to be made or published a false statement in relation to a candidate for election to public office, which did tend to injure or defeat such candidate’ contrary to section 34A.

On April 23, the two criminal complaints were heard in the District Court by a special justice. The same assistant district attorney put in the evidence of the same fourteen witnesses who testified in the same order as at the inquest, and then rested. The plaintiff's counsel, who had cross-examined the witnesses, obtained the agreement of the assistant district attorney that the population of Barre was thirty-five hundred ninety, and rested after calling the attention of the court to G.L.(Ter.Ed.) c. 55, § 38, which read: ‘Sections one to thirty-seven, inclusive, shall apply to all public elections, except of town officers in towns of less than ten thousand inhabitants, * * * and, so far as applicable, to the nomination by primaries, caucuses, conventions and nomination papers of candidates to be voted for at such elections.’ A recess was taken to enable the assistant district attorney ‘to look into this,’ and thereafter the plaintiff was found not guilty and discharged.

The defendant testified in the case at bar that he knew that the population of Barre was about thirty-eight hundred; that he did not tell counsel that it was under ten thousand; that he had no conversation with counsel as to the population; and that counsel never asked him what it was. The bill of exceptions contains the following from the defendant's testimony: ‘He [the defendant] asked him [Mr. Norman] whether in view of Chapter 55, Sec. 38 Mr. Higgins was guilty of any criminal offence. He did not before consulting Mr. Norman examine the statute himself. * * * He did not ask Mr. Norman if Mr. Higgins might be guilty of the criminal violation of the election laws with special reference to the effect of section 38.’ There was also testimony from one Dunbar, called as a witness by the plaintiff, that shortly after the election the defendant ‘had the law on the conviction of illegal practice of Mr. Higgins,’ whether ‘on book or on a paper’ he did not know, but after witness read...