Pullen v. Glidden

• Decision Date: 20 December 1878
• Parties: WILLARD W. PULLEN v. JAMES S. GLIDDEN.
• Court: Maine Supreme Court

68 Me. 559

WILLARD W. PULLEN v. JAMES S. GLIDDEN.

Supreme Judicial Court of Maine.

December 20, 1878

ON EXCEPTIONS.

CASE for malicious prosecution, for an alleged forgery of an order on Eaton Shaw of Portland, state commissioner, for four barrels of rum, in the name of N. G. Bryant, agent of the town of Palermo. The plaintiff, Pullen, after a three days' hearing before a trial justice, was discharged on motion of L. M. Staples, the attorney for the complainant Glidden, and afterwards brought this action.

The undisputed facts are that Glidden was one of the selectmen who had appointed Bryant agent, and gave him an order on Shaw for all the liquors he called for on account of the town that Shaw received an order under the name of Bryant for four barrels of rum which he directed to Bryant; that he afterwards sent his bill to the selectmen which they showed to Bryant, who denied that he wrote or authorized any one to write such an order; that the selectmen went to Portland, and after conference with Shaw, paid his bill; that they afterwards went to Augusta, and were told by the depot master that he delivered the rum to a man he supposed was Bryant and afterwards learned was Bryant; that they were also informed by teamsters that Pullen was seen about that time on Augusta bridge with a horse drawing barrels which he called rum, and was afterwards on the same day seen driving in the direction of his home and also of Bryant's; that afterwards they called on Pullen as to who wrote the order, and he declared he knew nothing about it; that subsequently the defendant called on lawyer Staples and told him all the above facts, and was by him advised that the defendant would be justified in commencing a prosecution; that thereafter the defendant made the complaint.

Neither Pullen nor Bryant were present at the trial. There was also evidence tending to prove other facts. The defendant testified that at the time he consulted Staples he exhibited to him the disputed order and another order of like kind known to be genuine, and also a letter for a comparison received from one Foye purporting to be written by Pullen; that he left the letter with the trial justice, and it was afterwards lost. The existence of the letter was denied, and there was evidence both ways.

Witnesses were asked by the plaintiff " do you know what the common report was as to whether Pullen forged the order in question?" and answered, against the defendant's objection, " I do, and it is thought Pullen did forge the order." The presiding justice, against the plaintiff's objection, permitted the defendant's counsel to comment to the jury upon the fact that the plaintiff was not present to testify at the trial and did not testify in the case.

The attorney for the plaintiff admitted every material fact as stated by the defendant except the existence of the Pullen letter, which he denied, and the presiding justice refused his requested instruction to the jury as matter of law, that if they should find there was no such letter, all the other facts being admitted, there was no probable cause. He also refused the further requested instruction, that if all the facts claimed by the defendant were true there was no probable cause.

The verdict was for the defendant; and the plaintiff alleged exceptions.

J. W. Knowlton, for the plaintiff.

L. M. Staples, for the defendant.

BARROWS J.

A former verdict for the defendant in this case was set aside and a new trial granted, upon plaintiff's exceptions to an instruction given by the presiding judge, which seemed to require the jury to find that the defendant in prosecuting the plaintiff was actuated by express malice in the popular sense of the term, which is distinguishable from malice in fact in its true legal import. Pullen v. Glidden, 66 Me. 202.

The plaintiff now excepts: 1. To the admission, against his objection, of the testimony of several witnesses from the town where the parties lived that it was the common report there that plaintiff committed the crime for which the defendant instituted the prosecution here complained of. 2. To the permission given by the presiding judge to defendant's counsel to comment to the jury upon the fact that the plaintiff was not present at the trial and did not testify in the case, and to the comments made by the judge in his charge upon this and other facts appearing in the case. 3. To the judge's refusal to instruct, upon plaintiff's request, that all the facts in the case as presented by the defendant, including the existence of a certain letter purporting to be signed by the plaintiff (but which was denied by him) did not amount to probable cause for the original prosecution; and his refusal to instruct that if they should find there was no such letter, all the other facts being admitted to be as claimed by defendant, there was no probable cause, and to his submitting the question of probable cause to the jury.

I. Was the testimony objected to admissible? There was no specific objection to the questions put to the witnesses, as being too indefinite as to the time when or the place where it was commonly reported that the plaintiff was guilty of the crime for which the defendant caused him to be prosecuted. Nor was any objection interposed on the ground that it did not appear that the defendant was informed of these reports, or that they in any way originated with or were put in circulation by him. To make such objections available they should have been specifically stated so as to give the defendant an opportunity to obviate them if they were capable of being obviated. The objection being a general one to the competency of the evidence under any circumstances, the question presented is whether the fact of the existence of such common reports in the town where the parties lived, at a time prior to the prosecution alleged to be malicious, and made known to the prosecutor, though not originating with him, has any legitimate bearing upon the present contention. In distinguishing between hearsay evidence and that which should be deemed original and material, Professor Greenleaf well says: " Thus, where the question is whether the party acted prudently, wisely or in good faith, the information on which he acted whether true or false is original and material evidence. This is often illustrated in actions for malicious prosecution."

In actions of this sort it is necessary to determine whether the defendant instituted the proceedings against the plaintiff without probable cause and maliciously. The propositions are not identical nor absolutely interdependent. It is true that it is competent for the jury to find that the defendant acted maliciously as an inference from the want of probable cause. But the malice necessary to maintain this action is not implied by law from the want of probable cause. It is incumbent upon the plaintiff to prove the existence of malice in fact to the satisfaction of the jury. And, on the other hand, the existence of malice does not establish a want of probable cause. The defendant then is at liberty upon his plea of not guilty to offer any evidence which fairly tends to show either that there was probable cause for the prosecution which he commenced, or that in what he did he was acting honestly without malice. Does the fact, if it exists, that it was the common report in the town where the parties lived that the plaintiff was guilty of the offense before the defendant, having knowledge thereof, instituted the prosecution, have any bearing upon either of these points?

We think it was competent upon both, though not perhaps of the highest importance.

That the general bad reputation of the plaintiff may be proved in such an action as this was long ago held in Rodriguez v Tadmire, 2 Esp. 721. It is true that in Newsam v. Carr, 2 Starkie 69, Wood, B., ruled that the defendant should not be permitted to prove that the plaintiff was a suspicious character, and that his house had been searched on a former occasion, saying that, although such evidence was admissible in slander for the purpose of mitigating damages, such evidence in this case would afford no proof of probable cause to justify the defendant. But, with this case before him, Shaw, C. J., remarks in Bacon v. Towne, 4 Cush. 217, 240: " We are inclined to think that evidence of the general bad reputation of the plaintiff should have been admitted, to rebut the proof of want of probable cause as well, as in mitigation of damages… The same facts which would raise a strong suspicion in the mind of a cautious and reasonable...