Rosenblum v. Ginis

• Decision Date: 30 June 1937
• Citation: 9 N.E.2d 525,297 Mass. 493
• Parties: ROSENBLUM v. GINIS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 493

9 N.E.2d 525

ROSENBLUM

v.GINIS et al.

Supreme Judicial Court of Massachusetts, Worcester.

June 30, 1937.

Action of tort by Frances Rosenblum, administratrix, against Abraham Ginis and another. Finding for plaintiff in the sum of $1,000 on the report of an auditor, and defendants appeal and bring exceptions.

Exceptions overruled and appeal dismissed.Exceptions and appeal from Superior Court, Worcester County; Whiting, judge.

C. N. Dewey, of Worcester, for plaintiff.

L. K. Nathanson, of Boston, for defendants.

RUGG, Chief Justice.

The plaintiff seeks in this action of tort to recover compensation for damages sustained by her intestate as the result of a civil action brought by the defendants against him on April 13, 1932. The case was referred to an auditor, who made a report in favor of the plaintiff's intestate and assessed damages in the sum of $1,000. The exceptions state that the defendants filed a motion that judgment be entered for the defendants on the report of the auditor. It does not appear that any evidence other than the report of the auditor was submitted to the trial judge. The trial judge found for the plaintiff's intestate on the report and assessed damages in the sum of $1,000 subject to exception by the defendants. The defendants also appealed from that action by the trial judge. The material findings of the auditor were these:

This is an action brought for malicious prosecution. Five years before the bringing of the action, the plaintiff's intestate, hereafter for convenience termed the plaintiff, had been in partnership in business with his two brothers, but severed his business connections with them. After the dissolution of the partnership, the plaintiff's brothers incurred a debt with the defendants without the knowledge of the plaintiff. Later, a claim in the form of a statement was presented to the plaintiff for payment of the above debt. The plaintiff, immediately upon the receipt of the statement, informed the defendants that he was not involved in any why with his brothers, and that he had not been a partner with them for several years; although telling the defendants just who the plaintiff was and what his business was. Later, an action was brought against the plaintiff and his two brothers on the debt, and judgment obtained.

Service had been accepted on the writ in the action above mentioned, by an attorney who had not been authorized to accept service for this plaintiff, though he had been so authorized by the two brothers of the plaintiff. The plaintiff had no knowledge of the action or judgment against him, until he was cited into the poor debtor court on supplementary proceedings. Upon his becoming cognizant of the fact that poor debtor proceedings had been brought against him, the plaintiff engaged counsel, and the judgment, execution and supplementary process, or poor debtor proceedings, were discharged as to this plaintiff. When supplementary process proceedings were commenced against the plaintiff, notice thereof was published in trade journals covering the trade in which the plaintiff was then engaged. The result of the publication was that many of the creditors of the plaintiff made demands for immediate payment of the obligations due them, and the plaintiff was unable to meet all of the demands. Ultimately, the plaintiff was forced into bankruptcy by involuntary petition. The plaintiff estimated his loss to be $4,500, but the auditor found in favor of the plaintiff in the sum of $1,000.

The defendants filed a motion that the auditor's report be set aside and that the cause be recommitted. Among other grounds it was alleged in support of that motion that there was no finding that the action was brought by the defendnats with malice or without probable cause. This motion was denied after hearing, but no exception was saved to that disposition. That motion was addressed solely to the discretion of the trial judge. Tobin v. Kells, 207 Mass. 304, 93 N.E. 596. It is to be observed that the report of the auditor contains a general finding for the plaintiff. That report does not recite or summarize the evidence; it is in substance a naked summary of the facts found. Fair v. Manhattan Ins. Co., 112 Mass. 320, 329. The general finding for the plaintiff in these circumstances imported a finding of all the subsidiary facts essential to that conclusion. Bendslev v. Lovell, 235 Mass. 133, 135, 126 N.E. 389. In the absence of a report of the evidence, the general finding of the auditor must stand. J. W. Grady Co. v. Herrick, 288 Mass. 304, 310, 192 N.E. 748;Tobin v. Kells, 207 Mass. 304, 93 N.E. 596.

When a case is submitted by the parties to the trial judge upon the report of the auditor alone, ‘all inferences of fact which could reasonably be drawn from the evidence in favor of the general conclusion of the auditor, will be presumed to have been so drawn by him.’ Peru Steel & Iron Co. v. Whipple File & Steel Mfg. Co., 109 Mass. 464, 466. This general finding was prima facie evidence warranting an ultimate finding in favor of the plaintiff unless necessarily inconsistent with other findings in the report. Newell v. Chesley, 122 Mass. 522, 524;Fisher v. Doe, 204 Mass. 34, 40, 90 N.E. 592;Ballou v. Willey, 180 Mass. 562, 568, 62 N.E. 1064; G.L. (Ter.Ed.) c. 221, § 56. Its quality as such evidence is not affected by the fact that it is not supported by subsidiary findings (unless purporting to rest upon such findings) since the general finding imports findings of subsidiary facts essential to the conclusion; ‘it is enough if they do not contradict it.’ Robinson v. Hooker, 174 Mass. 490, 491, 55 N.E. 178, 179;Carroll v. Carroll, 188 Mass. 558, 559, 74 N.E. 913;Brooks v. Davis (Mass.) 1 N.E. (2d) 17;J. W. Grady Co. v. Herrick, 288 Mass. 304, 310, 192 N.E. 748. It follows that absence of subsidiary findings does not discredit the autitor's report. The general finding of the trial judge for the plaintiff after a hearing upon the report of the auditor as evidence imports the drawing of all permissible linferences of which the case is susceptible. It will not be reversed if it can be supported on all such inferences. Wakefield v. American Surety Co., 209 Mass. 173, 176, 95 N.E. 350;Standard Oil Co. of New York v. Malaguti, 269 Mass. 126, 129, 168 N.E. 535;Ballou v. Fitzpatrick, 283 Mass. 336, 339, 186 N.E. 668;Moss v. Old Colony Trust Co., 246 Mass. 139, 143, 140 N.E. 803.

The action for malicious prosecution lies for abuse of civil as well as criminal process. There are instances in our decisions of such actions based on civil proceedings. Watkins v. Baird, 6 Mass. 506, 4 Am.Dec. 170, and Everett v. Henderson, 146 Mass. 89, 14 N.E. 932,4 Am.St. Rep. 284, were cases based on arrest of the plaintiff in a civil action. In Stone v. Swift, 4 Pick. 389, 393,16 Am.Dec. 349, and Pierce v. Thompson, 6 Pick. 193, the original civil proceeding involved the attachment of property. Lindsay v. Larned, 17 Mass. 190;Malone v. Belcher, 216 Mass. 209, 103 N.E. 637, 49 L.R.A.(N.S.) 753, Ann.Cas.1915A, 830; Shaw v. Fulton, 266 Mass. 189, 191, 165 N.E. 26. In order to prevail in such an action, the plaintiff has the burden of proving that the original action was brought maliciously and without probable cause and has been terminated in favor of the plaintiff. White v. Dingley, 4 Mass. 433, 435;Stone v. Crocker, 24 Pick. 81, 83;Ellis v. Simonds, 168 Mass. 316, 325, 47 N.E. 116;Bannon v. Auger, 262 Mass. 427, 160 N.E. 255. There are no specifice findings in the report of the auditor touching these precise points. But there is nothing to show that the essential facts did not exist. The rules already stated as to the weight to be attributed to an auditor's report are sufficient to support the finding in favor of the plaintiff.

It has been held that an action of this nature, based upon a...