Morrow v. Wheeler & Wilson Mfg. Co.

• Decision Date: 28 February 1896
• Parties: MORROW v. WHEELER & WILSON MANUF'G CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 349

43 N.E. 105

MORROW v. WHEELER & WILSON MANUF'G CO. et al.

Supreme Judicial Court of Massachusetts, Middlesex.

February 28, 1896

COUNSEL

B.D. O'Connell, for plaintiff.

William H. Preble, for defendants.

OPINION

BARKER, J.

The exceptions to the ruling that the first count, which was for libel, and the second count, which was for assault and false imprisonment, could not be maintained, must be overruled. Upon the evidence, the only publication of defamatory words was the making of the complaint to the police court. The only assaults and imprisonments were the arrest and detention of the plaintiff under due process of law. A complaint made to a court of competent jurisdiction, in the regular course of justice, and containing no impertinent allegations, is not deemed an actionable libel. Kidder v. Parkhurst, 3 Allen, 393. Nor is the complainant or his principal liable for the arrest and detention of the person complained of, save in the case of a malicious prosecution; and in that case damages for the arrest and detention are recoverable only as elements of the general damages, and not independently. Barker v. Stetson, 7 Gray, 53; Coupal v. Ward, 106 Mass. 289; Mullen v. Brown, 138 Mass. 114; Langford v. Railroad Co., 144 Mass. 431, 11 N.E. 697.

We need not inquire whether the plaintiff should have been made to elect as to which defendant she would proceed against upon the count for malicious prosecution. See Mulchey v. Society, 125 Mass. 487. Her conviction in the police court conclusively established the fact that the prosecution was instituted with probable cause. Dennehey v. Woodsum, 100 Mass. 195, 197. This defeated her action, and she was harmed neither by her discontinuance as to one defendant, nor by the ordering of the verdict against her in favor of the other defendant. Exceptions overruled.