McMahon v. Florio
| Citation | 166 A.2d 204,147 Conn. 704 |
| Parties | John J. McMAHON v. Pasquale FLORIO. Supreme Court of Errors of Connecticut |
| Decision Date | 06 December 1960 |
| Court | Supreme Court of Connecticut |
Alfonse C. Fasano, New Haven, for appellant (defendant).
William F. Geenty, New Haven, for appellee (plaintiff).
Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ. BALDWIN, Chief Justice.
This is an action for malicious prosecution. The trial court directed a verdict for the defendant and thereafter granted the plaintiff's motion to set the verdict aside on the ground that the court mistook the law pertaining to whether the conviction of the plaintiff upon a prosecution instituted by the defendant constituted conclusive proof of probable cause when the conviction was reversed on appeal. The defendant has appealed.
The facts can be briefly stated. The plaintiff and defendant were members of rival factions in the Democratic party in East Haven. The defendant operated a restaurant in that town. On December 21, 1955, he had been charged in the Town Court of East Haven with breach of the peace arising out of difficulty with his wife. The plaintiff came to the defendant's restaurant on January 11, 1956. He claims that the defendant offered him money to obtain the dismissal of the charge in the Town Court because a conviction could result in the suspension of the defendant's license to sell intoxicating liquors in his restaurant. The defendant, on the other hand, claims that the plaintiff told him that if he wanted to get out of the breach of the peace charge he had better pay $750, and threatened to inform the state police that the defendant was running strip-tease shows in his restaurant. The defendant, after consulting with his attorney, complained to the prosecuting attorney of the Town Court on February 25, 1956. The prosecuting attorney secured a signed statement from the defendant, caused an investigation to be made by the state police, and, after he had consulted with the state's attorney for New Haven County, caused a warrant to be issued on March 22, 1956, directing the plaintiff's arrest upon a charge of attempted blackmail and extortion. General Statutes §§ 53-40, 54-60. The plaintiff was tried in the Town Court of East Haven on March 31, 1956. After all the evidence was in, the court found him not guilty of the charge of attempted blackmail and extortion but directed the prosecuting attorney to amend the complaint to charge him with a breach of the peace under what is now § 53-174. The court found him guilty on this charge and imposed a fine. The parties are agreed that the finding of guilty upon the charge of breach of the peace was predicated upon the evidence adduced on the charge of attempted blackmail and extortion. The plaintiff appealed the conviction to the Court of Common Pleas, where, after a trial to the court, he was acquitted on June 12, 1956.
In the trial of the case at bar in the Superior Court, the defendant relied on the conviction of the plaintiff on the charge of breach of the peace and claimed that, although the conviction was reversed on appeal, it conclusively established probable cause. To maintain an action for malicious prosecution, the plaintiff must prove want of probable cause. Zenik v. O'Brien, 137 Conn. 592, 595, 597, 79 A.2d 769, and cases cited. A valid judgment of conviction upon the charge instituted is a conclusive defense. Clewley v. Brown Thomson, Inc., 120 Conn. 440, 442, 181 A. 531; Goodrich v. Warner, 21 Conn. 432, 443. In its memorandum of decision setting aside the directed verdict, the trial court stated that it was motivated in directing the verdict for the defendant by the principle set forth in Restatement, 3 Torts § 667: '(1) The conviction of the accused by a magistrate or trial court although reversed by an appellate tribunal, conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury or other corrupt means.' The rule stated represents the majority viewpoint. 34 Am.Jur. 737 § 55, 738 § 56; note, 59 A.L.R.2d 1413, 1420. In Goodrich v. Warner, supra, after...
To continue reading
Request your trial
-
Crocco v. Advance Stores Co. Inc.
...citations and quotation marks omitted). "Whether particular facts constitute probable cause is a question of law." McMahon v. Florio, 147 Conn. 704, 707, 166 A.2d 204 (1960). Thus, as Glorioso and Advance correctly argue, see Reply to Plf.'s Opp. to Advance's and Glorioso's Mot. Summ. J. at......
-
DeLaurentis v. City of New Haven
...... See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, supra; McMahon v. Florio, 147 Conn. 704, 707, 166 A.2d 204 (1960). . In the case before us, it is undisputed that the mayor abandoned the ......
-
Giannamore v. Shevchuk
...& Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007); Vandersluis v. Weil, supra, 176 Conn. at 356, 407 A.2d 982; McMahon v. Florio, 147 Conn. 704, 707, 166 A.2d 204 (1960) ("[w]hether particular facts constitute probable cause is a question of law"). Accordingly, our review is plenary. Fa......
-
Wisniski v. Ong
...did observe her take the pills. A conviction obtained by false testimony is not conclusive proof of probable cause, McMahon v. Florio, 147 Conn. 704, 166 A.2d 204 (1960); Boxer v. Slack, 124 W.Va. 149, 19 S.E.2d 606 (1942); McElroy v. Catholic Press Co., 254 Ill. 290, 98 N.E. 527 (1912). Se......