Call v. Hayes

Barker, J. 1. The complaint on which the count for malicious prosecution is founded charged the embezzlement of money. It was material for the present plaintiff to show, in support of the count, that he had a right to collect the money from the defendant’s customers, and to retain it until the time of the settlement between the defendant and the plaintiff, which the former had appointed for Tuesday, the next day after the collection of the money. The plaintiff’s testimony that the defendant, in discharging the plaintiff, told him that he should hold him responsible for every cent there was on his books, and that he would settle with him on Tuesday afternoon, tended to show the plaintiff’s right to collect the money. That he communicated to the defendant on Monday the information that he would make a settlement with him on Monday evening was a circumstance [591] material to the question whether, when, on Tuesday morning, the defendant instituted the prosecution, he had reasonable cause to believe the plaintiff guilty of embezzlement. As the communication was through a third person, who testified that he delivered it on Monday to the defendant, the plaintiff’s testimony that lie instructed the third person to make the communication was competent, and was properly admitted. 2. The other exception relating to this count is to the refusal to instruct the jury that, upon the evidence offered by the plaintiff, he had failed to prove want of probable cause, and to return a verdict for the defendant upon the first count. Assuming that the defendant introduced no evidence, and that the evidence offered by the plaintiff was not in dispute, it was sufficient to show want of probable cause for the institution of the prosecution. The defendant discharged the plaintiff from his service on Sunday, informing him at the time that he should hold him responsible for every cent there was on his books, which implied that, if not already collected from the customers, it must be got in, and that he would settle with him on Tuesday afternoon. On being informed on Monday that the plaintiff would settle with him on that evening, the defendant declined, and caused the plaintiff to be arrested on Tuesday morning on the charge of embezzlement, which was founded upon the plaintiff’s having collected on Monday the one dollar and sixty cents, and converted it to his own use, and the defendant himself admitted that he instituted the prosecution for the purpose of getting back his money and his customers, and he had testified in the hearing upon the complaint that he held the plaintiff responsible for all the accounts on his books. All this was enough to show want of probable cause for the prosecution, and in submitting the case to the jury the presiding justice in effect so ruled. 3. The request to instruct the jury that no cause of action was set out in the count for libel was in effect a request to rule, as matter of law, that the published words were not defamatory. It is only when the court can say that the publication is not reasonably capable of any defamatory meaning, and cannot be reasonably understood in any defamatory sense, that such a ruling as that requested can be given. Twombly v. Monroe, 136 Mass. 464. Odgers, Libel & Slander, (2d ed.) 25. This pub [592] lication could be reasonably understood to mean that the plaintiff had forfeited the defendant’s confidence, had perpetrated a transaction characterized as a “ scoop,” to which right-minded people generally, constituting the public, would not be a party, and that the public should form of him a bad opinion. The request was rightly refused. It was the duty of the presiding justice to submit the count to the jury upon the evidence, and the bill of exceptions states that it was submitted to them with full instructions, to which no exception was taken. Exceptions overruled.