Practice, Civil, Exceptions, Conduct of trial. Malicious Prosecution. Witness, Contradiction.
No exception will be sustained on account of an error of a presiding judge in admitting incompetent evidence which has no apparent connection with the case, where there is nothing in the record to show that its admission harmed the excepting party.
A presiding judge cannot be required to base a ruling as to the plaintiff's right to recover upon a partial view of the evidence.
In an action for alleged malicious prosecution, where the defendant's liability depends on the question whether he acted with reasonable and probable cause in making a criminal complaint against the plaintiff, if the defendant asks the presiding judge to rule that, if the jury believe that certain witnesses told the defendant what they testified that they told him, and that the defendant believed the statements to be true, the defendant acted with reasonable and probable cause and the plaintiff cannot recover, the presiding judge is justified in refusing to make the ruling on the ground that it omits the important qualification, that the belief of the defendant in the statements made to him must be reasonable in view of the character of the information, the sources from which it came and the circumstances under which it was communicated.
In an action for alleged malicious prosecution, where the defendant's liability depends on the question whether he acted with reasonable and probable cause in making a criminal complaint against the plaintiff, it is only when the facts are undisputed that the question whether or not there was probable cause becomes one of law. If there is a controversy between the parties as to several material facts, the question of the existence of probable cause must be submitted to the jury.
In an action for alleged malicious prosecution, where the defendant's liability depended on the question whether he acted with reasonable and probable cause in making a criminal complaint against the plaintiff charging him with simple larceny of certain chattels, the presiding judge in substance instructed the jury that if one, suspecting that a crime has been committed, fairly represents to a magistrate all the circumstances as he believes them to be with an honest conviction of their existence and truth, and is satisfied as a cautious man that they furnish reasonable ground for such a conclusion, he has done his duty and should be exonerated. The judge amplified these propositions and stated them in various forms in plain language, and gave the rule as to the burden of proof correctly. Held, that the instructions were correct, and that, simple larceny being a crime so easily understood, instructions in greater detail were not required.
No exception lies to the exclusion by a presiding judge of evidence offered to contradict the testimony of a party to the action on trial upon a point which is immaterial and irrelevant.
RUGG, J.
This is an action for malicious prosecution. The plaintiff was discharged by a court of competent jurisdiction after having been arrested upon a charge of larceny preferred against him by the defendant.
1. The plaintiff was permitted to testify, subject to the defendant's exception, that after his arrest and while waiting for bail at police headquarters, the inspector called some one on the telephone and asked if it was Sage Brothers Company and said, "You needn't wait any longer because we went around the other way." This evidence was inadmissible. It does not appear to have been spoken to the defendant or to anybody acting for him. But there is nothing in the record to show that this error occasioned any harm to the defendant. The one who is reported to have made the remark was a public official and his action and words do not seem to have even a remote connection with either the plaintiff or the defendant, or the present action. For aught that appears, it related to a wholly foreign matter. It was suggested at the argument before us that some improper use was made of this evidence by counsel in his remarks to the jury. But there is nothing in the record respecting this and no exception was saved to such conduct. It falls within the class of harmless errors, as to which justice does not require that an exception be sustained.
2. The defendant requested a ruling that "if the jury believe that Mr. Johnson told Mr. Sage (the defendant) what he testified he told him, and that Mr. Pineo told Mr. Sage what he testified he told Mr. Sage, and if Mr. Sage believed the statements to be true, then the defendant acted with reasonable and probable cause, and the plaintiff cannot recover." It would have been unjust to grant this request in view of all the evidence. One important point as to which the testimony was conflicting was whether the plaintiff, at the time he sold certain chattels to the corporation of which the defendant was president, told the defendant that the articles, with the larceny of which the complaint charged him, had been borrowed from one Fisher in Somerville and were not included in the sale. If it was true that this statement was made by the plaintiff to the defendant, then it would not follow that belief by the defendant in the assertions made to him by Johnson and Pineo would constitute reasonable and probable cause, because they were not inconsistent with ownership of the articles by the plaintiff. Pineo's testimony showed that the tools in question had been taken to a plumber named Fisher in Somerville. While the testimony of Johnson and Pineo standing alone might have a tendency to arouse suspicion against the plaintiff in the mind of a reasonably cautious and prudent man, yet it cannot be ruled, as matter of law, that if the defendant, to whom these statements were made, knew through other channels of information that the plaintiff asserted that he reserved the chattels, which he removed, from the sale of all his other like goods on the ground that they belonged to Fisher, to whom they were delivered, the defendant would nevertheless have reasonable ground for believing the plaintiff to be a thief. This is an illustration of the reason of the rule that a judge cannot be asked to base a vital part of his charge upon a partial view of the evidence. The request was defective also in omitting the important qualification that the belief of the defendant in the statements made to him must be reasonable, in view of the character of the information, the sources from which it came, and the circumstances under which it was communicated.
There was controversy between the parties as to several material facts. Hence the existence of probable cause was necessarily submitted to the jury. It is only when the facts are undisputed that whether or not there was probable cause becomes a question of law to be determined by the court alone. There was no error in the portions of the charge to which exception was taken. The jury were told in substance that if one, suspecting that a crime has been committed, fairly represents to a magistrate all the circumstances with an honest conviction of their existence and truth and is satisfied as a cautious man that they furnish reasonable ground for such a conclusion, then he has done his duty and should be exonerated. These propositions were amplified and stated in various forms of plain language and the rule as to the burden of proof was given correctly. This was in conformity with numerous decisions of this court. Mitchell v. Wall, 111 Mass. 492. Laing v. Mitten, 185 Mass. 233. Ellis v. Simonds, 168 Mass. 316. The crime of simple larceny of certain chattels is one which may readily be understood by the ordinarily intelligent person and the facts, whether direct or circumstantial, which would justify a reasonable and prudent man in honestly believing one guilty of this offence, are not commonly such as to require instructions to the jury in greater detail than appear upon this record.
3. The plaintiff testified that one Johnson had no interest whatever in the business conducted by the New England Carbonator Company, he himself having an interest in it and being its general manager, and that its books were kept by him or under his supervision. The defendant then offered the books of the company for the purpose of showing that Johnson had an interest in this business and thus contradicting the plaintiff. But this inquiry in all its branches was wholly aside from the issue on trial. The plaintiff's testimony upon this point having been immaterial and irrelevant was not open to contradiction. Gorham v. Moor, 197 Mass. 522, 525, and cases cited.
Exceptions overruled.