De Simone v. Parillo, 9853
| Decision Date | 12 February 1958 |
| Docket Number | No. 9853,9853 |
| Citation | 87 R.I. 95,139 A.2d 81 |
| Parties | Thomas DE SIMONE v. Carmenuch PARILLO. Ex. |
| Court | Rhode Island Supreme Court |
Fergus J. McOsker, Providence, for plaintiff.
Francis A. Manzi, Providence, for defendant.
This is an action on the case for malicious prosecution of the plaintiff on a criminal charge of assault and battery. After a hearing before a justice of the superior court sitting without a jury, a decision was rendered for the defendant. The case is before us on the plaintiff's bill of exceptions to such decision and to a ruling of the trial justice refusing to strike out certain testimony. The plaintiff has expressly waived his exception numbered 1.
The record discloses the following pertinent facts. As a result of a dispute among plaintiff, his father and defendant, plaintiff was arrested by the state police on a private complaint sworn to by defendant for an alleged assault and battery on the person of defendant. After a trial in the eighth judicial district court, plaintiff, who was the defendant in that case, was adjudged not guilty. Thereafter plaintiff commenced the instant action.
At the hearing in the superior court in such action defendant testified that on the day of the alleged assault he drove to plaintiff's place of business in the town of Johnston; that he and plaintiff had some words while standing on the right-hand side of defendant's truck; that they were alone at the time; that he then got into his truck and while sitting there he heard some swearing and looked around; that he then saw plaintiff's father coming from where he lives; and while defendant turned around plaintiff pulled him off the truck and he fell to the ground. The defendant also testified that while he was climbing back into his truck plaintiff's father got hold of him, knocked him down and started kicking him; that he passed out and when he regained consciousness he had blood on his face and head; and that on the following morning he went to the state police and swore out a private complaint for the arrest of plaintiff.
The plaintiff's version of what occurred is in direct conflict with the testimony of defendant. He denied that he had pushed defendant from the cab of the truck. He testified that defendant came to his place of business, stood in front of the serving window, and that a conversation took place between them; that defendant went away swearing; that plaintiff was looking at the truck when he saw his father's head 'bob up' on the other side thereof and, surmising that something was wrong, he left his place of business and ran around to the left side of the truck; that defendant was on the ground; that a sailor who was present pulled his father off defendant; and that he, plaintiff, helped defendant off the ground, put him in the truck, and told him to get out.
The plaintiff's father testified that he saw defendant standing at the service window and talking to plaintiff who was inside; that he walked to the back of defendant's truck, which was parked about ten feet from plaintiff's building; that defendant turned around and walked over to the truck; that he remonstrated with defendant for having called plaintiff names; that defendant took a swing at him; that he thereupon struck defendant and he went down; and that was the end. This witness also testified that plaintiff was not present when he and defendant had the fight; that he came out after it was over; and that plaintiff tried to push defendant into the truck.
The deputy chief of the Johnston police department was called as a witness by defendant. On direct examination he testified that while he was on juty at the police station on the evening of the trouble in question plaintiff's father came to the station complaining about the fracas; that after he left, plaintiff came in and asked the deputy chief to send the police; and that after plaintiff had left, defendant came in. In answer to a question by defendant's counsel as to what happened as a result of his talk with defendant, the deputy chief replied: The plaintiff's counsel moved that the answer be stricken on the ground that it was not responsive. The trial justice's refusal to strike such testimony is the basis of plaintiff's exception 2.
The plaintiff concedes that the record contains testimony showing that defendant wanted both plaintiff and his father arrested and that plaintiff's father wanted defendant arrested. However, he claims that there is no evidence showing that plaintiff requested the arrest of anyone. He...
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Nagy v. McBurney
...521, 522-23 (1937); Prosser, Supra at 855, but may not be drawn from the "mere failure" of the original action. DeSimone v. Parillo, 87 R.I. 95, 98-99, 139 A.2d 81, 83 (1958). Proof of malice alone, however, even in the extreme, will not suffice to establish a case of malicious prosecution ......
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Cook v. Lester
...does not constitute an allegation of fact supporting the legal conclusion of want of probable cause. In De Simone v. Parillo, 87 R.I. 95, at page 98, 139 A.2d 81, at page 83, this court said: 'However, the want of probable cause will not be inferred from the mere failure of the prosecution ......
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DeFusco v. Brophy
...charge and the presence of 'malice' by the officers who were responsible for the initiation of the charges. DeSimone v. Parillo, 87 R.L. 95, 139 A.2d 81 (1958). DeFusco did not even come close to the establishment of the presence of either ingredient. In 1965, G.L.1956, § 11-32-1 2 provided......