142 A. 391 | Conn. | 1928
The plaintiff and the defendant were occupants of adjoining buildings, separated by a narrow alley-way. While the defendant was shoveling snow from this alley-way he was assaulted by one Frank Fusario, a brother of the plaintiff. The plaintiff was not present at the time, and the defendant, shortly afterward, stated to a policeman that it was not the plaintiff but his brother Frank who had committed the assault. Later, however, as a result of statements made to the police by one Mrs. DeFelice, the plaintiff was arrested on a charge of breach of the peace, to which a charge of assault with intent to disfigure was added subsequently, and after several continuances of the case, was tried in the City Court of *42 New Haven, and acquitted. The defendant was present in court during the several continuances and at the trial falsely testified that the plaintiff held him while Frank Fusario bit off his, the defendant's, nose. On the same date on which the case first came up in the City Court the defendant caused a civil suit to be instituted against the plaintiff and his brother, Frank, for assault and battery arising out of the same facts, and on the trial of this action in the Superior Court he testified substantially as he had in the criminal case. In the civil action judgment was rendered in favor of Joseph Fusario, the plaintiff, and against his brother.
The three essential elements of an action for malicious prosecution: the discharge of the plaintiff, want of probable cause, and malice, are unmistakably present upon the facts found. McGann v. Allen,
The defendant claimed, upon the trial, that, since he did not prefer the charge against the plaintiff or cause or bring about the prosecution, he could not be held liable. This contention is disposed of by our recent holding that not only one who actually procures or causes such a prosecution but all who knowingly aid, abet, assist in or adopt the same are liable, as joint tort-feasors, for the damage done. McGann v. Allen,supra, p. 185. The appellant now makes the further claim that the complaint charged the defendant as an original instigator only and that he cannot be held liable, thereunder, as an aider and abettor. "The defendant, after contesting the case upon its merits, without objection or protest, cannot now maintain that there are material variances between allegations and *43
proof." Jordan v. Apter,
The further contention of the appellant is that the acts and conduct of the defendant, as revealed by the finding, are insufficient to support the trial court's conclusions that he knowingly aided, abetted and assisted in the prosecution of false charges against the defendant, and adopted them as his own. The finding indicates that the defendant's presence in the City Court as a witness was under subpoena, so that, technically, his appearance may be said not to have been voluntary. It is found, however, that he knew that the plaintiff did not participate in the assault, nor was he present at the time. Therefore his testimony to the contrary was voluntarily false. His prompt utilization of the charge embraced in the criminal prosecution as the basis for a civil action was likewise voluntary.
The proposition chiefly relied on is that the giving of false testimony in the criminal case does not constitute an aiding and abetting in causing or procuring the prosecution; but liability is not confined to so narrow a ground. If, after proceedings have been commenced, parties voluntarily conspire and maliciously join in the prosecution without probable cause they may be held liable. Russell v. Chamberlain,
This case is not within the scope or reason of the general rule that an action will not lie in favor of a *44
party, against whom a judgment is rendered in a case, against one who gave false testimony on the trial. 38 Cyc. 515, and cases cited in note 59. In McClarty
v. Bickel,
There is no error.
In this opinion the other judges concurred.
