254 Mass. 441 | Mass. | 1926
The defendant instituted criminal proceedings against the plaintiff accusing him of larceny by retaining fares received by him while in charge for the defendant of. a “one man” car at Haverhill. After an acquittal, the plaintiff brought suit for malicious prosecution. To maintain his action it was necessary to prove that the defendant, or those acting for it and for whom it was'responsible, instigated the criminal proceedings, that in so doing it was acting maliciously and without probable cause, and that the plaintiff had been acquitted. The defendant did not contest the first and the last; but it did contest that it had acted maliciously or without probable cause to believe the plaintiff guilty; and it offered much evidence to show that it acted throughout in reliance upon and in accord with the advice of counsel thoroughly familiar with the facts known to the defendant.
In the course of the trial the defendant excepted to the admission of testimony that the plaintiff was familiar with a rule of the company to the effect that persons offering anything other than the exact fare should be given change for the amount tendered and should be required themselves to place the proper fare in the fare box, and that he observed this rule; and of testimony in regard to his reputation. It excepted also to the exclusion of testimony of O’Donoghue, a superintendent and the manager of the Haverhill division, that on the Saturdays of a series of weeks when he had laid off the plaintiff the receipts from the car were greater by about $15 each day than the average turned in by the' plaintiff for the same trips on the Saturdays of the several weeks before the lay off; and to the exclusion of testimony of Fritch, assistant general manager, that he had been told by O’Donoghue of the difference in receipts and that he had considered it and given it weight in deciding whether to authorize the prosecution.
The defendant’s exception to the refusal to strike out the testimony of Steed in regard to the reputation of the plaintiff must be sustained. The ordinary rule, that the reputation of a party in a civil action is inadmissible, does not apply in
The evidence of Fritch should have been admitted. It stands on a different ground from that of O’Donoghue. The latter was asked to testify to facts from which the jury would be asked to draw an inference of the plaintiff’s guilt. These facts the law may take to be só likely to mislead a jury, or so likely to introduce collateral issues tending to confuse the jury and to prolong the trial unduly, that a judge may be justified in excluding them from the jury’s consideration, in spite of the truth that they are relevant and would be con-' sidered persuasive anywhere outside the court room. Granting that by themselves they are inadmissible under the rules of evidence, and that their truth or falsity is immaterial; yet if they were communicated to Fritch and influenced his judgment in deciding that he had probable cause to believe the plaintiff guilty, they are admissible. The jury may
As these exceptions must be sustained, it is unnecessary to consider the other questions raised by the bill of exceptions. At another trial a different situation is likely to be presented. The order must be
Exceptions sustained.