Langford v. Boston & A.R. Co.
| Decision Date | 09 May 1887 |
| Citation | 144 Mass. 431,11 N.E. 697 |
| Parties | LANGFORD v. BOSTON & A.R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Morse & Lane and William Webster, for plaintiff.
Proof of malice in instituting a criminal prosecution makes out a case entitling plaintiff to a remedy. Maliciously complaining of another, without probable cause, renders one liable for the injury, even though the complaint is defective, or the court has no jurisdiction; and this is so, even though the complainant does not participate in the arrest. Barker v. Stetson, 7 Gray, 53, 54; West v Smallwood, 3 Mees. & W. 418; Elsee v. Smith, 1 Dowl. & R. 97. Vide infra. Whatever the name or form of the action is, malice is the gist of it; and proof of malice in complaining, and of the injury resulting, makes out a case. The form of the complaint indicates that the conductor did not believe the plaintiff was fraudulently evading his fare for there was no charge of fraudulently evading, as required by the statute, (Pub.St. c. 112, § 197,) but simply that he "unlawfully refused to pay," etc. There was strong evidence of malice, and by the authorities it should have been left to the jury. If the defendant complained of the plaintiff, with a view to his arrest, believing or having reason to believe him innocent of crime, defendant was guilty of express malice. Bobsin v. Kingsbury, 138 Mass 538; Krulevitz v. Eastern R.R., 140 Mass. 573, 5 N.E. 500, and 143 Mass. 238, 9 N.E. 613.
The plaintiff claims that the defendant is liable for malicious prosecution and false imprisonment, one or both; and he has accordingly inserted two counts. Case is the remedy for simply maliciously complaining, and trespass for instigating the arrest. See Barker v. Stetson, supra, and Elsee v. Smith, supra. An action of trespass or false imprisonment lies where a complainant participates in or directs or instigates the arrest. Emery v. Hapgood, 7 Gray, 55; Whiting v. Johnson, 6 Gray, 246; Carratt v. Morley, 1 Adol. & E. (N.S.) 18, 29; Krulevitz v. Eastern R.R., supra; Barker v. Stetson, 7 Gray, 53. Malicious prosecution, or an action in the nature of malicious prosecution, that is, a special action on the case, stating the scienter and other special facts, will lie, notwithstanding the defect in the warrant. See Elsee v. Smith, supra; Barker v. Stetson, 7 Gray, 53, 54; West v. Smallwood, 3 Mees. & W. 418; 2 Greenl.Ev. § 449; Gibbs v. Ames, 119 Mass. 60; Bixby v. Brundige, 2 Gray, 129; 3 Bl.Comm. 127. In such cases, it seems a scienter should be alleged. Oliv.Prec. (4th Ed.) § 560; Frierson v. Hewitt, 2 Hill, (S.C.) 499; Jones v. Gwynn, 10 Mod. 214; Wicks v. Fentham, 4 Term R. 247; Goslin v. Wilcox, 2 Wils. 302, 307; Grainger v. Hill, 4 Bing. (N.S.) 212. Suits for malicious prosecution, or in the nature thereof, have been maintained upon defective complaints and indictments in the following, among other, cases: Gibbs v. Ames, 119 Mass. 60; Frierson v. Hewitt, supra; Jones v. Gwynn, supra; Pippet v. Hearn, 5 Barn. & Ald. 634; Wicks v. Fentham, 4 Term R. 247; Chambers v. Robinson, 2 Strange, 691; Dennis v. Ryan, 63 Barb. 145; Anderson v. Buchanan, Wright, (Ohio,) 725; Stancliff v. Palmeter, 18 Ind. 321; Collins v. Love, 7 Blackf. 416; Shaul v. Brown, 28 Iowa, 37.
The magistrate's record of conviction in the case at bar would not be evidence of probable cause, because it shows that the court had no power to convict, and hence it is nugatory, and the plaintiff may prove, as he has done, want of probable cause by the evidence. Though it be admitted that plaintiff was guilty of the facts charged against him in the complaint, he was still not guilty of any offense known to the criminal law. The termination of the suit is also sufficient, because it appears that the prosecution is finally ended, and can never be revived, and because in the nature of things no legal conviction or acquittal is possible. A nolle prosequi alone would not operate as an acquittal, (Bacon v. Towne, 4 Cush. 217, 285; Parker v. Farley, 10 Cush. 279; Brown v. Lakeman, 12 Cush. 482; Parker v. Huntington, 7 Gray, 38; Coupal v. Ward, 106 Mass. 289;) for, without other circumstances, it is not equivalent to one, ( Graves v. Dawson, 130 Mass. 78, and 133 Mass. 419.) Failure to enter is a sufficient termination in a civil suit. Cardival v. Smith, 109 Mass. 158. A virtual acquittal is sufficient in a criminal suit. Bobsin v. Kingsbury, 138 Mass. 538. A discharge, where a court has neither power to acquit or convict, but simply to bind over, is sufficient. Sayles v. Briggs, 4 Metc. 421; Stone v. Crocker, 24 Pick. 81; Moyle v. Drake, 141 Mass. 238, 6 N.E. 520. In Grainger v. Hill, supra, it was held that termination was not necessary; but, if necessary in the case at bar, the plaintiff has been virtually acquitted.
Samuel Hoar, for defendant.
The nolle prosequi, entered with the consent or at the request of the party prosecuted, after he had been convicted by a court of competent jurisdiction, and had appealed, is not such a termination of complaint as is necessary to sustain an action for malicious criminal prosecution, especially when it does not appear that he was discharged by order of court. Parker v. Farley, 10 Cush. 279; Brown v. Lakeman, 12 Cush. 482; Cardival v. Smith, 109 Mass. 158; Knott v. Sargent, 125 Mass. 95; Graves v. Dawson, 130 Mass. 78, and 133 Mass. 419. The subject-matter of the complaint against the plaintiff comes under Pub.St. c. 112, § 197, and was within the jurisdiction of the trial justice before whom he was convicted. A conviction by a trial justice having jurisdiction of the subject-matter of the complaint is conclusive evidence of probable cause. Whitney v. Peckham, 15 Mass. 243; Parker v. Huntington, 7 Gray, 36; Cloon v. Gerry, 13 Gray, 201; Payson v. Caswell, 22 Me. 212. When a person does no more than to prefer a complaint to a magistrate, he is not liable in trespass for the acts done under the warrant which the magistrate thereupon issues, however groundless the complaint may be. Barker v. Stetson, 7 Gray, 54; Coupal v. Ward, 106 Mass. 289.
OPINION
The first count of the plaintiff's declaration is, in substance, a count for malicious prosecution, and it cannot be maintained, because the evidence fails to show such a determination of the prosecution alleged to be malicious as will entitle the plaintiff to maintain this action. The entry of nolle prosequi by the district attorney of his own motion, followed by a discharge of the accused party by the court, may be such a termination of the prosecution as will enable the party to maintain an action for malicious prosecution. Graves v. Dawson, 133 Mass. 419. But our cases uniformly hold that where a nolle prosequi is entered by the procurement of the party prosecuted, or by his consent, or by way of compromise, such party cannot have an action for malicious prosecution. Parker v. Farley, 10 Cush. 279; Coupal v. Ward, 106 Mass. 289; Graves v. Dawson, 130 Mass. 78. In the case at bar, after the complaint against the plaintiff was entered in the superior court, upon his appeal, a nolle prosequi was entered by the district attorney, by the procurement of the attorney of the plaintiff. No discharge was ordered by the court. The superior court rightly ruled that the plaintiff could not maintain his count for malicious prosecution.
The second count is for assault and false imprisonment. One of the agents of the defendant made a complaint to a trial justice against the...
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