See v. Gosselin

• Decision Date: 16 July 1946
• Citation: 133 Conn. 158,48 A.2d 560
• Court: Connecticut Supreme Court
• Parties: SEE v. GOSSELIN et al.

133 Conn. 158

48 A.2d 560

SEE

v.GOSSELIN et al.

Supreme Court of Errors of Connecticut.

July 16, 1946.

Appeal from Superior Court, New Haven County; Wynne, Judge.

Action by Harold S. See against Ann M. Gosselin and others to recover damages for malicious prosecution. A demurrer by defendant White Tower Management Corporation was sustained and judgment entered for that defendant, and plaintiff appeals.

Error, judgment set aside, and case remanded with direction.

Charles Albom, of New Haven, (Nelson Harris, of New Haven, on the brief), for appellant.

Albert H. Barclay, Jr., of New Haven, (John W. Barclay, of New Haven, on the brief), for appellee White Tower Management Corporation.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

ELLS, Judge.

This is an action for malicious prosecution based upon the commencement and prosecution of a criminal proceeding against the plaintiff. It is generally held that the plaintiff must allege and prove that the criminal action terminated in his favor, either by his acquittal or in some other manner equivalent thereto. Note, 69 A.L.R. 1062, and cases there cited. This is substantially in accord with the rule in this state. The three essential elements of an action for malicious prosecution are the discharge of the plaintiff, want of probable cause, and malice. Fusario v. Cavallaro, 108 Conn. 40, 42, 142 A. 391; McGann v. Allen, 105 Conn. 177, 185, 134 A. 810; Thompson v. Beacon Valley Rubber Co., 56 Conn. 493, 499, 16 A. 554. The question in the present appeal is whether the plaintiff's complaint contains a sufficient allegation of the termination of the criminal proceedings in his favor. It arose upon a demurrer which was sustained by the trial court; thereafter a judgment entered upon the refusal of the plaintiff to plead further.

The allegation as to the conclusion of the criminal proceedings is as follows: ‘On July 14, 1945, after a due hearing of the State's witnesses before His Honor Judge Frank Bergin of the City Court of New Haven, the prosecutor of said court on his own motion without the request of plaintiff who had not yet had an opportunity to present the defense of said proceeding requested a nisi continuance without a finding of guilt as he termed it until August 14, 1945, which motion the court granted and on which date said prosecutor entered a nolle prosse of said cause.’ It thus appears that after a partial trial the prosecutor entered a nolle. The accused was not acquitted, nor was he discharged by the court. However, the effect of the nolle was to release the accused from custody; he could no longer be held under arrest. ‘Discharge’ means no more than release from custody. 1 Bouv.Law Dict., Rawle's Third Rev., p. 878. When we made ‘discharge’ a condition of bringing an action of malicious prosecution, it signified the termination of the particular prosecution. It is not necessary that the accused should have been acquitted. It is sufficient if he was discharged without a trial under circumstances amounting to an abandonment of the prosecution without request from or by arrangement with him. Brown v. Randall, 36 Conn. 56, 62, 4 Am.Rep. 35; see Frisbie v. Morris, 75 Conn. 637, 639, 55 A. 9. Such a termination of the prosecution is sufficient ground for the institution of the action, but it does not, of itself, establish want of probable cause or malice, which are to be determined at the trial upon all the facts. Thompson v. Beacon Valley Rubber Co., supra. Brown v. Randall is cited in 34 American Jurisprudence 723, § 34, as an authority for the statement that ‘It has frequently been held that there is a sufficient termination to meet the requirements in this respect in an action for malicious prosecution where the prosecution is abandoned either by the prosecuting attorney or the complaining witness.’ The defendant claims that although the syllabus in Brown v. Randall, supra,...