MacRae v. Brant

• Decision Date: 30 June 1967
• Docket Number: No. 5585,5585
• Citation: 108 N.H. 177,230 A.2d 753
• Parties: Thomas T. MacRAE v. Paul R. BRANT.
• Court: New Hampshire Supreme Court

Page 753

230 A.2d 753

108 N.H. 177

Thomas T. MacRAE v. Paul R. BRANT.

No. 5585.

Supreme Court of New Hampshire.

Argued March 9, 1967.

Decided June 30, 1967.

Fisher, Parsons, Moran & Temple, Dover (Harold D. Moran, Dover, orally), for plaintiff.

William W. Treat, Hampton, for defendant, filed no brief.

LAMPRON, Justice.

For some months prior to June 5, 1962, the plaintiff had been employed at the Portsmouth Naval Shipyard. He resided in Franklin but during the week occupied a mobile home in North Hampton, a short distance from defendant's filling station in Rye. During that period plaintiff purchased gasoline from defendant on several occasions and paid for it by cash or check.

On June 5, 1962, plaintiff stopped there and had an employee of the defendant put gas and oil in his car in the amount of $5.46. The Master properly found that plaintiff told the attendant he wanted a receipt so he could check his mileage and that although plaintiff had not then paid for the gas and oil the attendant gave him the receipt requested. When offered in evidence, there appeared on the back of this receipt a mileage computation which plaintiff testified was made by him. The Master also found that the attendant then served another customer and when he went back to collect from the plaintiff he was in the process of leaving the station without paying for the gas and oil he had received. The attendant whistled at him but plaintiff did not respond and continued on his way. Defendant was then advised by his employee that plaintiff had left without paying his bill.

On the same day, Tuesday, June 5, 1962, the defendant tried unsuccessfully to reach plaintiff's residence and telephoned the Portsmouth Naval Shipyard, where he knew plaintiff was employed, and left a message for him to call. Plaintiff did not work until Friday and became aware for the first time at 12:30 A.M. on Saturday after his day's work that defendant was looking for him. However, on that Friday defendant, not having heard from plaintiff, signed a complaint for larceny with the Rye police and a 'pick up' order for the plaintiff followed.

Plaintiff learned of this order on his arrival at his residence in Franklin early Saturday morning. After learning the details from the Franklin police he went to Rye and at the trial, on June 16, 1962, at which he appeared pro se, was found guilty of the charge of larceny. He appealed to the Superior Court and on October 29, 1963, the day set for trial, the defendant did not appear and the Presiding Justice entered the following order: 'Dismissed for lack of prosecution.'

The defendant had gone to Arizona in September 1963 and did not receive notice in time to be aware of the October 29 hearing date. The Master found that defendant 'thought that the appeal would be prosecuted by the County Attorney.' After learning of the dismissal, defendant filed a motion, on December 13, 1963, to reinstate the complaint. No action on this motion had been taken by the Superior Court at the time of the hearing in the present case.

The essence of an action for malicious prosecution has been stated succinctly as follows: 'A malicious prosecution is one that is begun in malice, without probable cause to believe it can succeed, and which finally ends in failure.' Munoz v. City of New York, 18 N.Y.2d 6, 271 N.Y.S.2d 645, 218 N.E.2d 527.

If defendant can prove that the plaintiff is guilty of the charge made against him plaintiff cannot successfully maintain an action for malicious prosecution. Prosser, Torts (3 ed), s. 113, pp. 858, 859; 1 Harper and James, The Law of Torts, s. 4.4, pp. 307, 310. Hence the requirement that plaintiff must prove that the criminal proceedings finally ended in his favor. Cohn v. Saidel, 71 N.H. 558, 565, 53 A. 800; Neuman v. Ellars, 75 Ill.App.2d 394, 221 N.E.2d 85; Restatement, Torts, s. 672.

Although the plaintiff in this case was found guilty of larceny after trial in the Rye Municipal Court his appeal to the Superior Court vacated that judgment and transferred the whole proceeding to that Court to be tried de novo. State v. Green, 105 N.H. 260, 261. The dismissal of this appeal for lack of prosecution, which was still in effect constituted a sufficient termination in favor of the plaintiff of the criminal complaint brought against him to support an action for malicious prosecution. Cook v. Lanier, 267 N.C. 166, 170, 147 S.E.2d 910; Restatement, Torts, s. 659.

However to maintain his action successfully plaintiff had the further burden of proving that the defendant acted without probable cause and maliciously in bringing the criminal charge against him. Cohn v. Saidel, 71 N.H. 558, 565, 53 A. 800; Neumann v. Industrial Sound Engineering, 31 Wis.2d 471, 143 N.W.2d 543. This burden was assumed by the plaintiff and remained with him during the whole trial even though the burden of going forward with evidence on these issues might have shifted to the defendant at a certain point in the trial. Cohn v. Saidel, supra, 71 N.H. 566, 567, 570, 53 A. 800; Perreault v. Lyons, 99 N.H. 169, 171, 172, 106 A.2d 380

'Probable cause is defined to be such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.' Cohn v. Saidel, supra, 71 N.H. 567, 53 A. 800, 805. It 'does not depend upon the guilt or innocence of the accused of the crime charged, * * * but depends on the prosecutor's honest belief in such guilt based on reasonable grounds' at the time the charge is initiated. Cook v. Lanier, 267 N.C. 166, 170, 147 S.E.2d 910, 914; Cohn v. Saidel, supra, 71 N.H. 568, 53 A. 800; Munoz v. City of New York, 18 N.Y.2d 6, 271 N.Y.S.2d 645, 218 N.E.2d 527; 6 Prosser, Torts, (3d ed) s. 113, p. 860.

The existence of probable cause is a question of law for the ultimate determination of the Court. Perreault v. Lyons, 99 N.H. 169, 172, 106 A.2d 380; Gladfelter v. Doemel, 2 Wis.2d 635, 641, 87 N.W.2d 490. However, where, as in this case, the facts were in dispute as to whether defendant's actions might have been motivated primarily by a desire to collect a private debt instead of by the socially encouraged purpose of bringing about the prosecution of one reasonably suspected of crime, the issue of probable cause became a mixed one of law and fact. Perreault v. Lyons, supra; Banks v. Montgomery, Ward & Company, 212 Md. 31, 42, 128 A.2d 600; Curley v. Automobile Finance Co., 343 Pa. 280, 283, 23 A.2d 48, 139 A.L.R. 1082 Annot. 87 A.L.R.2d 183.

Considerable controversy exists as to the effect of the disposition of the criminal proceeding itself as evidence of the existence or absence of probable cause. Prosser, Torts (3d ed.) s. 113, p. 864; Annot. 59 A.L.R.2d 1413. We are of the opinion that on the facts of this case it was not proper to take one position, which the master adopted, that a conviction is conclusive evidence of probable cause unless obtained by fraud or similar means. The reason is that, although the plaintiff was convicted of the...