Geary v. Stevenson

Lathrop, J. There is nothing in this case to show that the defendant had anything personally to do with the arrest or imprisonment of the plaintiff, or knew anything about it. He is sought to be held liable for the acts of one Tholley, who, although an employee of the defendant, did the acts complained of, as the defendant contended, while acting under the control and direction of one Kendall, a police officer. There are various exceptions to the exclusion of evidence [31] which we are of opinion must be overruled. Some of these go merely to the question of damages, and, as there was a verdict for the defendant, these are now immaterial. Poland v. Brownell, 131 Mass. 138. Sullivan v. Lowell Dracut Street Railway, 162 Mass. 536. Oak Island Hotel Co. v. Oak Island Grove Co. 165 Mass. 260. What Tholley said the day after the arrest is inadmissible on two grounds. No offer of proof was made of what the plaintiff expected to prove. McGuire v. Lawrence Manuf. Co. 156 Mass. 324, 326. Further, evidence of the declarations of Tholley after the event were inadmissible to bind the defendant. Williamson v. Cambridge Railroad, 144 Mass. 148. McKinnon v. Norcross, 148 Mass. 533. Vicksburg & Meridian Railroad v. O’Brien, 119 U. S. 99. This covers also the declarations of Tholley alleged to have been made in the court house on the morning of the plaintiff’s discharge. The exceptions state that the plaintiff offered to show by his mother and sister “ that prior to this affair he had never been arrested nor complained of for any crime, and that he had a good reputation.” This evidence, we are of opinion, was rightly excluded. In civil proceedings, evidence of this kind is, by the great weight of authority, held not to be admissible, unless the character of a party is directly in issue, as it is in actions of libel or slander, seduction, and malicious prosecution. In other cases the general rule applies that the character of a party is immaterial, and evidence of it is inadmissible, even though the cause of action is one for which a criminal prosecution might be brought, or where the offence set up in justification involves a crime. Among the numerous cases which have come before the courts may be cited the following, where this rule has been applied. Arson, or a similar statutory offence. Schmidt v. New York Ins. Co. 1 Gray, 529, 535. American Ins. Co. v. Hazen, 110 Penn. St. 530. Thayer v. Boyle, 30 Maine, 475. Gebhart v. Burkett, 57 Ind. 378. Assault and battery. Bruce v. Priest, 5 Allen, 100. McCarty v. Leary, 118 Mass. 509. Day v. Ross, 154 Mass. 13. Porter v. Seiler, 23 Penn. St. 424. Thompson v. Church, 1 Root, 312. Givens v. Bradley, 3 Bibb, 192. Cummins v. Crawford, 88 Ill. 312, 318. Schaeffer v. Oppenheimer, 9 N. Y. St. Rep. 688. Criminal conversation. Pratt v. Andrews, 4 Comst. 493. Norton [32] v. Warner, 9 Conn. 172. Divorce, where a crime is charged. Humphrey v. Humphrey, 7 Conn. 116. Lockyer v. Lockyer, 1 Edm. Sel. Cas. 107. False imprisonment. Downing v. Butcher, 2 M. & R. 374. Russell v. Shuster, 8 W. & S. 308. Fraud. Heywood v. Reed, 4 Gray, 574. Gough v. St. John, 16 Wend. 646. Potter v. Webb, 6 Greenl. 14. Simpson v. Westenberger, 28 Kans. 756. Wrongful appropriation of property. Wright v. McKee, 37 Vt. 161. Smets v. Plunket, 1 Strob. 372. The plaintiff relies, in support of his exception, on the case of McIntire v. Levering, 148 Mass. 546. But the only point decided in that case was that in an action for malicious prosecution the plaintiff was entitled, on the issue of probable cause, to show his good reputation, if this was known to the defendant. This decision followed numerous other decisions, and affirmed a well recognized exception to the general rule. We find nothing in the language used which warrants the plaintiff’s contention that, in a civil action, wherever a crime is committed, the plaintiff is entitled to show what his general reputation is. Bacon v. Towne, 4 Cush. 217, which is cited in McIntire v. Levering, is also an action for malicious prosecution. Howland v. Blake Manuf, Co. 156 Mass. 543, was an action for libel, which is also generally considered an exception to the general rule. The court, after citing some New York cases to the point that, if the commission of a crime is charged in the libel and the defendant offers proof of the charge, the plaintiff cannot show his previous good reputation in answer to the evidence of his guilt, refers to the case of Downey v. Dillon, 52 Ind. 442, as making a distinction between cases in which the charge sought to be proved is of the commission of a crime, and those in which the charge is of smaller magnitude. It is then said, “We are aware of no well considered cases which go further than that.” We do not understand this case as intending to lay down a general rule applicable to all offences, but merely as deciding that, if reputation was admissible in an action of libel, the plaintiff had not brought his case within even the limited rule stated by the Indiana case. The reason given for the exclusion of evidence of reputation in Lamagdelaine v. Tremblay, 162 Mass. 339, — that it was held by this court in Howland v. Blake Manuf. Co. 156 Mass. 543, [33] “ that on principle as well as authority evidence of good reputation is not competent to show that one is not guilty of a dishonorable or unlawful act, which is not punishable as a crime,” — was an inadvertence, inasmuch as no such point was decided in the case cited, as we have already pointed out. The evidence offered was undoubtedly rightly excluded, because the case came within the general rule to exclude such evidence in civil cases, and not within any of the exceptions to the rule. The first instruction requested was covered by the instruction given, except so far as it was qualified by what was said to the effect that the defendant would not be liable if Tholley was acting solely under the direction of the police officer. The judge could not, on the evidence in the case, rule, as matter of law, that Tholley in what he did was acting as the servant of the defendant. There was evidence that for the time being he was acting under the direction and control of the police officer. This question was properly submitted to the jury. If he was so acting, then the general master would not be responsible for his acts. Kimball v. Cushman, 103 Mass. 194. Murphey v. Caralli, 3 H. & C. 462. Manning v. Adams, 32 W. E. 430. Murray v. Currie, L. R. 6 C. P. 24. Samuelian v. American Tool Machine Co, 168 Mass. 12, and cases cited. The second and third instructions requested were fully covered by the instructions given. The plaintiff was not entitled to have the fourth request for instructions given. If it had been given, the jury might have been misled. It entirely omitted all reference to the guilt or innocence of the plaintiff, which was a material factor in the case. The subject matter was sufficiently covered by the charge. Exceptions overruled.