Pihl v. Morris

• Decision Date: 15 May 1946
• Citation: 319 Mass. 577,66 N.E.2d 804
• Parties: FRANK H. PIHL v. THEODORE A. MORRIS (and a companion case [1]).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

319 Mass. 577

66 N.E.2d 804

FRANK H. PIHL v. THEODORE A. MORRIS (and a companion case ^[1]).

Supreme Judicial Court of Massachusetts, Middlesex.

May 15, 1946

March 4, 1946.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & SPALDING, JJ.

Evidence Competency, Privileged communication, Relevancy and materiality. Malicious Prosecution. Libel and Slander. Agency, Agent's knowledge, Scope of authority or employment. Corporation, Officers and agents. Error, Whether error harmful. Practice, Civil, Exceptions: whether error harmful.

At the trial of actions for slander and malicious prosecution, evidence of statements, made by the defendant to a police officer, that the plaintiff had committed a theft was not to be excluded on the ground that the statements were privileged communications where the defendant's identity as the informer against the plaintiff and the substance of the accusations had already become a matter of public record through the defendant's instituting a criminal complaint for larceny against the plaintiff.

Want of probable cause and malice sufficient to support an action for malicious prosecution based on a complaint for larceny of a machine, on which the plaintiff was found not guilty, could properly be concluded on evidence warranting findings that the defendant, knowing that the plaintiff had bought the machine on conditional sale and had not stolen it, instituted the complaint in order to force the plaintiff to pay for the machine.

An action for slander might be maintained without proof of special damage on evidence warranting findings that the defendant, knowing that the plaintiff had bought a machine and had not stolen it, maliciously stated to a police officer that the plaintiff had stolen it.

A corporation was bound by the knowledge of its agent respecting certain matters material to causes of action against it for slander and malicious prosecution.

A finding was warranted that an employee of a corporation in charge of its business acted within the scope of his authority in making a defamatory statement that the plaintiff had stolen property of the corporation and in instituting an unfounded complaint for larceny against the plaintiff.

A newspaper article indicating that the plaintiff had been acquitted in a criminal proceeding for larceny would be competent on the issue of damages at the trial of an action for malicious prosecution based on the defendant's having instituted such proceeding.

If a newspaper article, stating that a person of a certain name similar to the plaintiff's had been acquitted of larceny, did not identify the plaintiff as the person referred to, its admission in evidence would not be error prejudicial to the defendant at the trial of an action for malicious prosecution based on the defendant's having instituted the proceeding for larceny.

TWO ACTIONS OF TORT. Writs in the Superior Court dated October 14, 1939. At a trial before Brogna, J., there were verdicts for the plaintiff. The defendants alleged exceptions.

J. C. Johnston, for the defendants. J. W. Vaughan, for the plaintiff.

QUA, J. The plaintiff has obtained verdicts against both defendants on counts for slander and malicious prosecution growing out of statements by the individual defendant to a police officer of Malden to the effect that the plaintiff had stolen a dish washing machine and out of a complaint for larceny of the machine made by the individual defendant against the plaintiff in the District Court in that city. The individual defendant was an officer of the corporate defendant and was in charge of its business of selling restaurant equipment. There was evidence that at the time of the alleged larceny the corporate defendant was the owner of the machine. The plaintiff was found not guilty by the District Court.

1. The defendants' first contention is that evidence lying at the foundation of each case, to wit, evidence of the statements of the individual defendant to the police officer necessarily including evidence of that defendant's identity as the informer against the plaintiff, was incompetent on the grounds stated in Worthington v Scribner, 109 Mass. 487, at page 488, in these words: "It is the duty of every citizen to communicate to his government any information which he has of the commission of an offence against its laws. To encourage him in performing this duty without fear of consequences, the law holds such information to be among the secrets of state, and leaves the question how far and under what circumstances the names of the informers and the channel of communication shall be suffered to be known, to the absolute discretion of the government, to be exercised according to its views of what the interests of the public require. Courts of justice therefore will not compel or allow the discovery of such information, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government." See Attorney General v. Tufts, 239 Mass. 458 , 490-491; Vogel v. Gruaz, 110 U.S. 311, 316.

We fully recognize the principle set forth in Worthington v. Scribner, and we agree that it exists for the protection of the public interest and not of a party or a witness. But we are satisfied that the principle does not apply in this case. Here both the identity of the informer and the substance of the accusation became a matter of record the moment the complaint was filed. At the time of the trial of these civil actions there was longer anything secret or confidential about either the identity of the informer or the accusation made by him. Moreover, in so far as respects the substance of the accusation, the very purpose of giving the information was that it might be used publicly in a criminal prosecution. Wigmore says of the rule illustrated by Worthington v Scribner: "The privilege applies only to the identity of the informant, not to the contents of his statement as such, for, by hypothesis, the contents of the communication are to be used and published in the course of prosecution. Much less does the privilege apply to prevent merely the proof of contents which have already been `de facto' disclosed, -- as in an action against the informant for libel. To deny production in such a case is in effect to declare that the libel is privileged from liability. . . . the action should not be defeated by an evasion which pretends to keep secret that which is not secret. . . . If the identity of the informer is admitted or known, then there is no reason for pretended concealment, and the privilege of secrecy would be...