Kelsea v. Swett

Crosby, J. These are actions for malicious prosecution. The plaintiff was arrested on two charges against him for receiving stolen property knowing it to have been stolen, preferred by the defendant Ralph W. Swett, and after trial by a court of competent jurisdiction, was acquitted. The plaintiff sought to charge the defendant William B. Swett, who.is the father of Ralph, with liability on the ground that. Ralph, in making the complaints, acted as the agent of his father. The jury found for the defendants, and the cases are before us on exceptions taken by the plaintiff to the refusal of the presiding judge to give two rulings. There was evidence to show that a part of the property in question belonged to the defendant William B. Swett and the remainder to his wife; that] it all was situated in a dwelling house in Mansfield and was stolen by one Frank Swett, another son of William, who sold it to the plaintiff, and that the latter removed it from the house. The record shows that Ralph instituted a complaint against his brother Frank for breaking and entering the dwelling house and stealing therefrom some of the property so purchased by the plaintiff; to that charge Frank pleaded guilty. [81] The plaintiff’s second request for a ruling in each case was that, “If the defendant instituted or was a party to instituting the criminal proceedings against the plaintiff with the purpose of using such criminal proceedings as a means of securing a return of the property, it is conclusive evidence of malice.” The plaintiff contends that he was entitled to this ruling because of a question put to the defendant Ralph W. Swett in his direct examination and his answer thereto, namely: “Q. ‘What reason have you to think that Mr. Kelsea knew that these goods had been stolen? ’ A. ‘Why, the way Mrs. Noonan had told me, and that I wanted to get my goods back, and she had told me how this automobile came just about dusk and how they were carried out of the window, and when I heard Bryant and those fellows were there, why, it looked kind of funny. ’ ” The statement in the answer that the defendant wanted to get his goods back cannot be construed as matter of law as an admission that his only motive in instituting the complaints was to enable him to regain possession of his property. This part of the answer was wholly irresponsive to the question, but, giving it full consideration, it amounted to nó more than the expression of a natural and proper desire on the part of one whose goods had been stolen to recover them. The question did not pall for an answer as to his motive in instituting the prosecution. Í If the jury found he was actuated by a desire to get his property back, they were not bound to find that that was his only motive for proceeding against the plaintiff, but that he had the further purpose of vindicating justice and protecting the community from crime;- it appeared that he had previously instituted the proceedings against his brother for breaking and entering and stealing a part of the property purchased by the plaintiff. The plaintiff’s second request was rightly refused; and the instruction given, that, if the proceedings were instituted as a means of securing the return of the property, it was evidence of malice, was sufficiently favorable to the plaintiff. Burnham v. Collateral Loan Co. 179 Mass. 268. White v. Apsley Rubber Co. 194 Mass. 97. Casaran v. Sage, 201 Mass. 547. The request that on all the evidence a verdict must be directed for the plaintiff could not properly have been given in either case; the burden rested upon the plaintiff to prove affirmatively [82] that the criminal proceedings were instituted against him maliciously and without probable cause; these were questions of fact to be determined by the jury. The instructions upon these issues are not before us, and we must assume that they were correct and sufficient. Ellis v. Simonds, 168 Mass. 316. Griffin v. Dearborn, 210 Mass. 308. Moscot v. Frank Ridlon Co. 216 Mass. 193. Malone v. Belcher, 216 Mass. 209. Exceptions overruled.