Higgins v. Pratt

• Decision Date: 12 September 1944
• Parties: JOSEPH H. HIGGINS v. ERNEST W. PRATT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 700

56 N.E.2d 595

JOSEPH H. HIGGINS v. ERNEST W. PRATT.

Supreme Judicial Court of Massachusetts, Worcester.

September 12, 1944

April 5, 1944.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & WILKINS, JJ.

Malicious Prosecution. Probable Cause. Practice, Civil, Exceptions what questions open; Requests, rulings, and instructions. Evidence, Presumptions and burden of proof, Relevancy and materiality. Witness, Cross-examination.

The mere fact that a defendant, who, following the charge to the jury, alleged exceptions to refusals to give certain rulings, requested by him before the charge was given, did not also except to portions of the charge inconsistent with such requested rulings, did not preclude him from relying in this court on the exceptions so saved.

The burden is upon the plaintiff in an action for malicious prosecution for an alleged crime to prove by affirmative evidence that irrespective of the actual state of facts, there was absent from the mind of the defendant when he charged the crime such an honest and reasonable belief as to the facts as would lead a man of ordinary caution and prudence to believe, or to entertain an honest and strong suspicion, that the plaintiff was guilty as charged.

At the trial of an action for malicious prosecution of the plaintiff for conduct alleged to be in violation of Sections 34 and 34A of G. L (Ter.

Ed.) c. 55, in connection with an election in a town, requests by the defendant for rulings, in effect that the defendant had probable cause to believe that the crime had been committed unless at the time he made the charge he "knew in fact that" such section "did not apply to towns of less than ten thousand population," properly were refused and a motion that a verdict be ordered for the defendant properly was denied where the defendant relied on a defence that in making the charge he followed advice of counsel and it appeared that he knew that the town in question had a population of less than ten thousand and there was evidence raising an issue for the jury whether he made a full and honest disclosure of facts to his counsel and honestly followed the advice given.

A request, by the defendant at the trial of an action for malicious prosecution, for a ruling respecting the issue whether the defendant had probable cause to believe the plaintiff guilty as charged, in substance that, if the defendant in consulting counsel as to his course of conduct did not withhold information with intent to procure an opinion that might operate to protect him against a suit, but, on the contrary, being doubtful of his legal rights, consulted counsel and afterwards pursued a course pointed out by counsel, he was not liable notwithstanding the fact that counsel might have been mistaken in the advice given, called to the attention of the judge the substantive issue of the effect of advice of counsel on the question of probable cause, and an instruction should have been given that the defendant should not be found liable if the jury found, in addition to the facts predicated in the request, that the defendant acted in good faith and made a full and honest disclosure to counsel of all the material facts within his knowledge and belief.

Failure of one, consulting counsel with respect to the propriety of his charging another with criminal violation of certain provisions of the election laws in connection with an election in a town, to state to counsel that the population of the town was less than ten thousand, which the client knew to be the fact, did not require a finding of lack of probable cause in an action for malicious prosecution against the client where, following counsel's advice, he made the charge and, because the statutory provisions did not apply to a town with a population of less than ten thousand, there was a finding of not guilty thereon, unless it was also shown that as a reasonable man he ought to have known that such fact was material to the advice he sought and that counsel did not already know the fact.

At the trial of an action for malicious prosecution on the charge of making false statements in violation of election laws, the defendant was entitled to make inquiry of the plaintiff in cross-examination respecting the truth or falsity of the statements.

The defendant at the trial of an action for malicious prosecution on a criminal charge was not entitled to examine a judge, who had found the plaintiff not guilty, as to "the basis" for his finding.

TORT. Writ in the Superior Court dated April 26, 1940. The case was tried before Swift, J. Requests by the defendant for rulings refused by the trial judge, referred to in the opinion, were as follows: "3. The defendant, having been advised by competent counsel to sign the complaints against the plaintiff is not answerable to the plaintiff for the prosecution thereunder unless the plaintiff proves by a preponderance of evidence that the defendant in bad faith concealed material facts within his knowledge from his counsel. This rule of law applies even though counsel was mistaken in law in the advice he gave the plaintiff. 4. The following facts have been stipulated by the parties in this case and must be considered as such by the jury: . . .

[here followed the statement of facts stipulated as set out in the second paragraph of the opinion]." "6. The defendant had probable cause to believe a crime had been committed by the plaintiff if he in good faith believed that the . . . [plaintiff] had caused to be made or published a false statement in relation to a candidate for election to public office unless the defendant at the time he signed the complaint knew in fact that G.L.c. 55, Section 34A, did not apply to towns of less than ten thousand population. 7. The defendant had probable cause to believe a crime had been committed by the plaintiff if he in good faith believed that the . . . [plaintiff] intentionally caused to be distributed a circular designed to defeat a candidate for public office on which circular there did not appear the name and address of some voter, unless the defendant, at the time he signed the complaint, knew in fact that G.L.c. 55, Section 34, did not apply to towns of less than ten thousand population." "12. If the defendant did not withhold any information from his counsel with the intent to procure an opinion that might operate to shelter and protect him against a suit, but, on the contrary, if he, being doubtful of his legal rights consulted learned counsel with a view to ascertain them, and afterwards pursued the course pointed out by his legal adviser, he is not liable to this action, notwithstanding his counsel may have mistaken the law."

Portions of the charge to the jury were as follows: "The defendant contended that he believed that there was a violation of the corrupt practice act, in that the circular was not signed; that false statements were made in it, and that they referred to him. It could not be a violation of the corrupt practice act, because it does not apply to towns of that population. Whether or not there were statements in that circular that were false is not before this jury, because the section with reference to false statements is not of any consequence as applicable to towns under ten thousand. With this circular, he proceeded to consult Mr. Norman . . . and had a conference with him. When he went . . . [to Mr. Norman] he had full knowledge that the town of Barre had only three thousand eight hundred people . . . certainly under ten thousand . . .. He testified that he did not tell Mr. Norman about that. Now, it is for you to say whether or not any probable cause existed to think that there was a violation of the corrupt practice act. If one has knowledge, he is supposed to disclose that knowledge to the attorney from whom he seeks advice . . .. If he did not, and seeks self defence under the protection that he went to an attorney for advice and followed the advice, that is no protection once self interest, on the facts, are [sic] shown. To have the protection of legal counsel presupposes an honest, fair and complete statement of the facts as the claimant [sic] knew them to exist at the time. Ignorance of the law does not afford protection. . . .

"If he was proceeding under a statement which depends, at least in part upon knowledge of population, and if he had the knowledge and he failed to give that honest statement, to the man from whom he wanted a legal opinion, it is for you gentlemen to determine whether or not it was a full disclosure of the facts as the defendant knew them to be, to the attorney . . .. It was his bounden duty to disclose the fact to his counsel to whom he went for advice, having a knowledge that that law under that section did not apply to the towns like Barre. And it is for you to determine whether or not there would have been any prosecution, whether there would have been any inquest, whether there would have been any investigation. . . .

"Mr. Pratt states here as a witness, that he did not acquaint Mr. Norman with the fact that the town of Barre had a population under ten thousand people and that he, Mr. Pratt, knew the population of Barre at the time of the conference. The existence of probable cause depends upon the facts within the knowledge of the defendant at the time the prosecution was instituted and not upon subsequent events nor upon matters then unknown to him. Probable cause involves the honest and reasonable belief of the party prosecuting. Probable cause is the essential ground of this action. Other things may be inferred from a want of probable cause, but probable cause could not be inferred from something else.

"Now, if a man prosecutes a cause or a complaint, having knowledge that if he made the fair, whole, honest...