Wax v. McGrath

• Decision Date: 30 March 1926
• Citation: 151 N.E. 317,255 Mass. 340
• Parties: WAX v. McGRATH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 340

151 N.E. 317

WAX

v.McGRATH.

Supreme Judicial Court of Massachusetts, Norfolk.

March 30, 1926.

Report from Superior Court, Norfolk County; Frederick J. MacLeod, Judge.

Action of tort by Benjamin Wax against Dennis P. McGrath. On report to the full court, to be disposed of in same manner as if case came up on defendant's bill of exceptions. Exceptions overruled.L. Marks, of Boston, and W. M. Olin, of Roxbury, for plaintiff.

C. O. Pengra, of Boston, for defendant.

BRALEY, J.

[1][2] The jury could find on the evidence that the defendant, a police officer of the town of Brookline, in the afternoon or early in the evening of June 12, 1924, without having any warrant, took the plaintiff, an insurance agent, into custody, and in the plaintiff's car which he was operating they drove to the police station. The defendant at the time of the plaintiff's detention interrogated him as to his name, residence, the name of the insurance company by which he said he was employed, as well as ‘where he was and what he was doing last night about this time.’ At the police station, in response to the plaintiff's inquiry why he was detained, the defendant took him to the sergeant's desk, and said, ‘I am placing this man under arrest for being a suspicious person.’ The plaintiff was then ‘booked,’ and, after his pockets had been searched, and ‘his valuables' taken, ‘the sergeant, when he saw the money, suggested that the plaintiff bail himself out.’ The plaintiff declined, and was taken by police officers to a cell. But the plaintiff was never ‘taken before a district court or trial justice to be examined and prosecuted,’ as provided in G. L. c. 41, § 98. There was evidence that certain personal property had been stolen the night before by breaking and entering a building in the vicinity, and that the person committing the crime probably used a small car, as the window through which entrance was effected was some distance from the ground, and that the defendant had made an investigation of the circumstances. The offense was a felony. G. L. c. 266, § 20; chapter 274, § 1. It is settled that if the defendant as a police officer had reasonable cause to suspect that the plaintiff was guilty of a felony he had the right to arrest him without a warrant. Commonwealth v. Phelps, 95 N. E. 868, 209 Mass. 396, 404, Ann. Cas. 1912B, 566. The defendant, called as a witness by the plaintiff, was asked on cross-examination, ‘Did you consider the plaintiff might have been guilty of that crime?’ The question was excluded and the defendant excepted. The defendant's counsel, however, then said, ‘I will change the form of the question,’ and asked, ‘Did you believe at any time that Mr. Wax was guilty of any crime?’ ‘Yes, sir, * * *’ and in response to other questions gave his reasons for that belief. The defendant therefore suffered no prejudicial error. Morrison v. Lawrence, 72 N. E. 91, 186 Mass. 456, 458. The present action is not for malicious prosecution, a wrong distinct from that of false imprisonment, which consists in imposing by force or threats an unlawful restraint upon freedom of movement. Wood v. Graves, 11 N. E. 567, 144 Mass. 365,59 Am. Rep. 95. If the arrest was found illegal, the detention at the station and in a cell was also illegal, and a continuing tort for which the defendant is responsible. Bath v. Metcalf, 14 N. E. 133, 145 Mass. 274,1 Am. St. Rep. 455. It follows that the restraint of the plaintiff against his will was wrongful, and constituted a false imprisonment unless justification was shown by the defendant on whom the burden of proving it rested. The defendant's sixth request that the burden is on the plaintiff to prove by a preponderance of the evidence that there was no probable cause for the arrest on the part of the defendant, or that it was done maliciously, could not have been given. Bassett v. Porter, 10 Cush. 418;Bath v. Metcalf, 14 N. E. 133, 145 Mass. 274,1 Am. St. Rep. 455;Jackson v. Knowlton, 53 N. E. 134, 173 Mass. 94. The third request that it will be inferred from the facts and from the absence of evidence to the contrary that the defendant's conduct was in pursuance of his authority and in accordance with it was also denied rightly. These questions were for the jury under appropriate instructions. Mason v. Lothrop, 7 Gray, 354.The defendant by the thirteenth request asked the court to rule:

‘That the defendant is not bound to show in his justification that a felony was actually committed to render the arrest lawful. He is sufficiently within his rights if he suspects one on his own knowledge of facts or on facts communicated to him by others, and thereupon he has reasonable grounds to suspect that the accused has been guilty of felony, the arrest is not unlawful.’

It was a correct statement of the law. Commonwealth v. Phelps, 95 N. E. 868, 209 Mass. 396, 404. But the judge was not required to give this request as framed, and the following instructions sufficiently safeguarded the defendant's rights:

‘Now the fact, if it be a fact, upon the evidence, that at the time of the arrest the police officer suspected that this man had been guilty of a felony, * * * which I understand to be the claim, of the suspicion that existed in the mind of the officer at that time, the fact that he believed that this man was involved in a break which occurred somewhere in that neighborhood on the night before—the fact, I say, that he may have suspected him of that is not conclusive by way of exonerating him of his action. * * * The question as to whether or not he acted in good faith in what he believed to be in the performance of his duty or whether he acted maliciously and the intent with which his action was taken, whether it was merely the good intent of a really loyal officer performing his duty and protecting the citizens of the town or otherwise, is not an issue which determines the responsibility here. The fact he entertained a suspicion against this person is material so far as it goes but it doesn't go far enough, unless the suspicions that he entertained were reasonable suspicions, and that I think is the crux of this case. And with respect to the ordinary rule which is laid down in most of the cases in regard to what is reasonable, what is a reasonable cause for suspecting a person of having committed a felony as defined by the courts is: ‘Probable cause is a reasonable ground of suspicion of guilt, or guilt suspected, by circumstances sufficiently strong in themselves to warrant a cautious and prudent man in entertaining an honest belief that a party is guilty.’ And if the defendant acted on such information as would induce a reasonably prudent man to believe the plaintiff guilty he was not liable. In other words, did the defendant in this case in what he did...