Mcgrath v. Keenan

• Decision Date: 27 April 1946
• Parties: McGRATH v. KEENAN et al.
• Court: New Jersey Court of Common Pleas

46 A.2d 725

McGRATH

v.KEENAN et al.

Court of Common Pleas of New Jersey, Essex County.

April 27, 1946.

Action by John J. McGrath against John B. Keenan and others for allegedly malicious action of defendants in causing plaintiff to be held to bail as witness in criminal proceedings against third parties. On motion to strike the complaint.

Motion denied.

Armstrong & Mullen, and Arthur C. Mullen, all of Jersey City, for plaintiff.

Thomas L. Parsonnet and Joseph A. Ward, both of Newark, for defendants Keenan, Kaas and Duym.

Fast & Fast and Louis A. Fast, all of Newark, for defendant Hemmer.

HARTSHORNE, Judge.

The gist of the present-the fourth amended-complaint is the allegedly malicious action of the defendants in causing plaintiff to be held to bail as a witness in criminal proceedings against third parties under the statute, R.S. 2:187-18 et seq., N.J.S.A., the which proceedings were ultimately dropped by the authorities, as were the above auxiliary proceedings against plaintiff as a witness.

The main objection leveled by defendants at this complaint is that same sounds in malicious prosecution, and that malicious prosecution lies only for the malicious institution of legal proceedings which seek an affirmative criminal adjudication against the defendant therein, or an affirmative civil adjudication, with some special grievance suffered by him different from and superadded to the ordinary expenses of a lawsuit.

But while this constitutes the basis of the ordinary proceeding for malicious prosecution, thus to limit one's right of recovery for the undoubted weong of unjustifiably and maliciously setting the processes of the law in motion against another to his damage, would constitute not only a clear denial of justice, but run counter to the general principles governing such torts. Basically, the forms of proceeding known as actions for malicious prosecution, malicious abuse of process, false imprisonment and false arrest, while each differs in some particulars from the other, are all protective of an individual's ‘interest in freedom from confinement,’ whether such confinement be physically of the person or a limitation of one's personal rights of freedom, as in holding a person to bail; and ‘it is immaterial whether the act [of defendant] directly or indirectly causes the confinement,’ i. e., whether the confinement or holding to bail is done by the defendant personally, or whether, as in the instant proceeding, he instigates the action of the authorities to that end. Restatement Torts, §§ 35, 37. Clearly, this freedom of the individual is as directly interfered with by his being held to bail as a witness in criminal proceedings, under the above statute, as by his being held to bail as a defendant to answer a criminal charge.

Moreover, while the assiduity of counsel has located no previous adjudication directly in point in any jurisdiction, this is doubtless due to the unusual state of facts, and authorities do exist upholding similar actions whose gist is other than the malicious institution of legal proceedings for an affirmative judgment against the plaintiff in the suit in question. The action has been held applicable, for instance, to cases of garnishment, purely auxiliary, as in the case at bar, to the proceedings in which judgment was obtained. Nix v. Goodhile, 95 Iowa 282, 63 N.W. 701, 58 Am.St.Rep. 434. Again, in New York P. & N. Railroad v. Waldron, 116 Md. 441, 82 A. 709, 39 L.R.A.,N.S., 502, plaintiff, who had been arrested and informally bailed as a witness in criminal proceedings against another, in much the same way as was plaintiff in the case at bar, was held entitled to maintain an action of false imprisonment against the persons who so arrested him and took bail, and this in a jurisdiction having a statute authorizing a magistrate to hold witnesses to bail in substantially the same way as does the above New Jersey statute. The only difference between that case and the case at bar is that there the defendant railroad company was, of course, not a magistrate authorized by the statute to detain plaintiff physically, or take money from him to bail him as a witness. Thus its action in so doing, being without shadow of legal right, was a false imprisonment, rather than, as is alleged here, a lawful imprisonment, instituted maliciously and without probable cause. Somewhat similar, indeed, is the situation in Walder v....