Jacobs v. Mann

• Decision Date: 24 May 1938
• Citation: 300 Mass. 258,15 N.E.2d 482
• Parties: SAMUEL I. JACOBS v. HARRY S. MANN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 258

15 N.E.2d 482

SAMUEL I. JACOBS v. HARRY S. MANN.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1938

March 8, 1938.

Present: RUGG, C.

J., FIELD, LUMMUS DOLAN, & COX, JJ.

Pleading, Civil Declaration. Abuse of Legal Process. Malicious Prosecution.

A demurrer to a declaration in an action of tort properly was sustained because it failed to state concisely and with substantial certainty the substantive facts necessary to constitute a cause of action, whether the cause intended to be set out was an abuse of process or a malicious prosecution.

In a declaration for malicious prosecution, an allegation that the proceeding against the plaintiff "ended in favor of the present plaintiff in that, the said false and malicious action against the plaintiff was in no wise maintained," was a conclusion not admitted by demurrer.

TORT. Writ in the Superior Court dated November 15, 1937. A demurrer was sustained by Williams, J. The plaintiff appealed.

S. I. Jacobs, pro se. H. S. Mann, pro se.

COX, J. The defendant's demurrer to the plaintiff's declaration was sustained with an order that no amendment be allowed. The plaintiff's appeal from the order sustaining the demurrer is before us rightly. G.L. (Ter. Ed.) c. 231, Section 96. Morrill v. Crawford, 278 Mass. 250 . Gallo v Foley, 299 Mass. 1.

The action is in tort and the declaration is as follows:

"Plaintiff says that on or about the 31st day of July, 1934 the defendant, in order to injure the plaintiff in his profession and to disgrace, degrade, defame and prosecute him, with express malice and without probable cause, of his own initiation, being unauthorized in that behalf, as attorney for a supposed and then non-existing client, prepared signed, swore and filed in the Suffolk Superior Court at Boston, a groundless, false and malicious charge or allegation against the plaintiff, thereby joining him as a party defendant and by virtue thereof he was made to answer to the unfounded charge that he, the plaintiff, conspired with other defendants to withhold from the said supposed complainant a chose in action and a certain sum of money. By reason of the malicious action on the part of the defendant, the plaintiff was caused to appear in Court and defend himself although the defendant at all times well knew that the action was unauthorized, groundless and, that he had no affirmative proof, reasonable cause or any expectation of maintaining the said charge or complaint against the plaintiff. Thereafter, at a preliminary hearing held on or about September 26, 1934 before a justice of said Court, upon a `motion for order' and, also after final trial, the said proceedings ended in favor of the present plaintiff, in that, the said false and malicious action against the plaintiff was in no wise maintained. In consequence thereof, the plaintiff was injured in his profession, was subjected to disgrace, suffered anguish of mind, lost a great deal of valuable time and was put to expense. All to his great damage as in his writ alleged."

It is unnecessary to consider all of the eleven grounds assigned in the demurrer for we think that the declaration is objectionable on the first three grounds in that it fails to allege concisely and with substantial certainty the substantive facts necessary to constitute an actionable cause, and that the matters and averments contained in it are insufficient in law to maintain a cause of action.

If it is intended to allege an abuse of process, the declaration fails in this respect. See Wood v. Graves, 144 Mass. 365; White v. Apsley Rubber Co. 181 Mass. 339; MacLean v.

Naumkeag Trust Co. 268 Mass. 437 , 439; Rosenblum v. Ginis, 297...