Laing v. Mitten

• Decision Date: 27 February 1904
• Citation: 70 N.E. 128,185 Mass. 233
• Parties: LAING v. MITTEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 233

70 N.E. 128

LAING v. MITTEN.

Supreme Judicial Court of Massachusetts, Middlesex.

February 27, 1904

COUNSEL

John J. & Wm. A. Hogan, for plaintiff.

William H. Hent, for defendant.

OPINION

HAMMOND J.

The amended declaration contained three counts--the first, for false imprisonment; the second, for slander; and the third for malicious prosecution. The questions before us arise upon the rejection of two letters offered by the defendant, and upon the instructions to the jury upon the second and third counts.

1. As to the count for malicious prosecution: The defendant stoutly contends that the charge to the jury upon this point was contradictory and confusing, and that it must have misled them. While some of the sentences, considered apart from their setting, might seem to give color to this criticism still, upon a careful reading of the charge, we are of opinion that, in substance, the jury were told that the burden was upon the plaintiff to prove that in instituting criminal proceedings the defendant acted maliciously and without probable cause, and that upon the question of probable cause the jury were not to take into consideration the fact of the acquittal, but were 'to deal with the case as though it was new before' them, 'and say whether there was a probable cause for it, under all the circumstances.' While upon the question of damages the jury were at first told that the defendant was to be held liable for all the results of the prosecution, 'no matter what happened,' this statement was subsequently corrected so as to hold the defendant liable only for that 'which would naturally arise from the service of the process, or which naturally might be expected' to happen 'as the natural consequence of the service of the process.' As thus construed, the charge, both as to liability and damages was sufficiently favorable to the defendant. The defendant was not liable for any acts of the officer done in excess of the authority conferred by the warrant, but, having started the prosecution, he was liable for everything done within such authority, and that was so even if the officer might have been a little more considerate than he actually was. Adams v. Freeman, 9 Johns. 117; Welsh v. Cochran, 63 N.Y. 181, 20 Am. Rep. 519. It may be said, in passing, that while the bill of exceptions recites that 'the arrest was made in an unusual manner, and with acts of unnecessary and unwarrantable cruelty and indignity,' the acts which are set forth in the bill, with the possible exception of the confinement in a cell not sufficiently warmed (and even this might have occurred with no fault upon the part of any person), are all plainly within the authority of the precept under which the officer acted. Unless there were acts besides those shown in the record...