Boylen v. Tracy

Braley, J. This is an action for malicious prosecution tried by a judge of the Superior Court without a jury, and, the plaintiff having recovered, the case is here on the defendant’s exceptions to the judge’s refusal to rule as requested. The general request, that on the law and the evidence the plaintiff is not entitled to recover, embodies the other requests which in substance state reasons why, the defendant contended, it should have been granted. The defendant on June 10, 1921, “swore out a complaint in the First District Court of Bristol charging the plaintiff . . . with larceny of certain articles from a building owned by the defendant . . . and with malicious injury to the building.” G. L. c. 266, §§ 44, 104. The plaintiff after a trial was found not guilty on each count, and on July 21, 1921, he brought the present action. But, even if the prosecution was terminated by his acquittal, the plaintiff cannot recover unless he offered evidence on which it could be found that the defendant acted without probable cause, and was ac [108] tuated by malice. Shattuck v. Simonds, 191 Mass. 506. The judge could find that the articles described in the count for larceny had been purchased by the plaintiff from one Marshall, a tenant of the defendant, and that they were not fixtures, as she claimed, but personal property, and that in the removal of the property the plaintiff did not act wilfully and maliciously, but under an honest claim" of ownership. The correspondence between the parties, in which the defendant demanded its immediate return, or other steps would be taken, and the reply of the plaintiff stating at length his title, were also in evidence. It was a question of fact, whether the defendant, in instituting the prosecution, acted with such care and prudence as a reasonable and ordinarily prudent person would have used under the circumstances. Ellis v. Simonds, 168 Mass. 316, 326. The defendant however offered evidence tending to show that she acted under the advice of competent counsel. If this was proved, it was a complete defence. Donnelly v. Daggett, 145 Mass. 314, 318. While the burden of proof was on the plaintiff, the credibility of the defendant, the only witness who testified to what took place at the consultation, was for the court. Londy v. Driscoll, 175 Mass. 426. It appeared, among her other statements, that counsel said the plaintiff had been arrested some months before, and he was a man who had no property, and that was “one reason why . . . [she] should have a warrant issued.” It was for the judge to determine whether a fair statement of all the facts was presented to her counsel, and whether she honestly followed advice, honestly asked for the purpose of vindicating the law. Connery v. Manning, 163 Mass. 44, 47. We cannot say as matter of law that his adverse finding was wrong, and, it being settled by Stone v. Crocker, 24 Pick. 81, that want of probable cause is evidence of malice, all the requests for the reasons stated were denied rightly. Exceptions overruled.