| Mass. | Mar 30, 1926
The jury could find on the evidence that the defendant, a police officer of the town of Brookline, in the afternoon or early in the evening of June 12, 1924, without having any warrant took the plaintiff, an insurance agent, into custody, and that in the plaintiff’s car which he was operating they drove to the police station. The defendant at the time of the plaintiff’s detention interrogated him as to his name, residence, the name of the insurance company by which he said he was employed, as well as where he was and what he was doing “last night about this time.” At the police station in response to the plaintiff’s inquiry why he was detained, the defendant took him to the sergeant’s desk, and said, “I am placing this man under arrest for being a suspicious person.” The plaintiff was then “booked,” and after his pockets had been searched, and “his valuables” taken “the sergeant, when he saw the money, suggested that plaintiff bail himself out.” The plaintiff declined, and was taken by police officers to a cell. But the plaintiff was never “taken before a district court or trial justice to be examined and prosecuted” as provided in G. L. c. 41, § 98.
There was evidence that certain personal property had been stolen the night before by breaking and entering a building in the vicinity, and that the person committing the crime probably used a small car, as the window through which entrance was effected was some distance from the
The defendant, called as a witness by the plaintiff, was asked on cross-examination, “Did you consider the plaintiff might have been guilty of that crime? ” The question was excluded and the defendant excepted. The defendant’s counsel however then said, “I will change the form of the question,” and asked, “did you believe at any time that Mr. Wax was guilty of a crime?” “Yes, sir . . . ,” and in response to other questions gave his reasons for that belief. The defendant therefore suffered no prejudicial error. Morrison v. Lawrence, 186 Mass. 456" court="Mass." date_filed="1904-10-18" href="https://app.midpage.ai/document/morrison-v-city-of-lawrence-6428676?utm_source=webapp" opinion_id="6428676">186 Mass. 456, 458.
The present action is not for malicious prosecution, a wrong distinct from that of false imprisonment, which consists in imposing by force or threats an unlawful restraint upon freedom of movement. Wood v. Graves, 144 Mass. 365" court="Mass." date_filed="1887-05-06" href="https://app.midpage.ai/document/wood-v-graves-6422439?utm_source=webapp" opinion_id="6422439">144 Mass. 365. If the arrest was found illegal, the detention at the station and in a cell was also illegal, and a continuing tort for which the defendant is responsible. Bath v. Metcalf, 145 Mass. 274" court="Mass." date_filed="1887-11-23" href="https://app.midpage.ai/document/bath-v-metcalf-6422562?utm_source=webapp" opinion_id="6422562">145 Mass. 274. It follows, that the restraint of the plaintiff against his will was wrongful, and constituted a false imprisonment unless justification was shown by the defendant on whom the burden of proving it rested. The defendant’s sixth request that the burden is on the plaintiff to prove by a preponderance of the evidence that there was no probable cause for the arrest on the part of the defendant, or that it was done maliciously could not have been given. Bassett v. Porter, 10 Cush. 418. Bath v. Metcalf, supra. Jackson v. Knowlton, 173 Mass. 94" court="Mass." date_filed="1899-03-04" href="https://app.midpage.ai/document/jackson-v-knowlton-6426654?utm_source=webapp" opinion_id="6426654">173 Mass. 94. The third request, that “it will be inferred from the facts and from the absence of evidence to the contrary that the defendant’s conduct was in pursuance of his authority and in accordance with it,” was also denied rightly. These questions were for the jury under appropriate instructions. Mason v. Lothrop, 7 Gray, 354.
“Now the fact, if it be a fact, upon the evidence, that at the time of the arrest the police officer suspected that this man had been guilty of a felony, . . . which I understand to be the claim, of the suspicion that existed in the mind of the officer at that time, the fact that he believed that this man was involved in a break which occurred somewhere in that neighborhood on the night before, — the fact, I say, that he may have suspected him of that is not conclusive by way of exonerating him of his action. . . . The question as to whether or not he acted in good faith in what he believed to be in the performance of his duty or whether he acted maliciously and the intent with which his action was taken, whether it was merely the good intent of a really loyal officer performing his duty and protecting the citizens of the town or otherwise, is not an issue which determines the responsibility here. The fact he entertained suspicion against this person is material so far as it goes but it doesn’t go far enough unless the suspicions that he entertained were reasonable suspicions, and that I think is the crux of this case. And with respect to the ordinary rule which is laid down in most of the cases in regard to what is reasonable, what is a reasonable cause for suspecting a person of having committed a felony as defined by the courts is: ‘Probable cause is a reasonable ground of suspicion of guilt, or guilt suspected, by circumstances sufficiently strong in themselves to warrant a cautious and prudent man in entertaining an honest belief that a party is guilty.’ And if the defendant
If the plaintiff chose to waive the statutory requirement he could consent to his release without being taken before a court or magistrate, and discharge any claim he otherwise might have had against the defendant. Keefe v. Hart, 213 Mass. 476" court="Mass." date_filed="1913-01-29" href="https://app.midpage.ai/document/keefe-v-hart-6432068?utm_source=webapp" opinion_id="6432068">213 Mass. 476, 482. The defendant pleads such a release under seal, with a further provision releasing the defendant from any liability. The evidence of the circumstances under which the release was obtained was conflicting. While the sergeant testified that the defendant signed of his own free will, the jury on the plaintiff’s testimony would have been warranted in finding, that the plaintiff was searched, and the sergeant when he saw the money suggested, “that plaintiff bail himself out.” The plaintiff asked “how much it would cost,” and was told $2. He replied, “This thing wouldn’t cost me a red cent.” The plaintiff was then taken to a cell by several officers and after he had been there two hours an officer visited him and said, “Well, it seems we know who you are, but you will have to sign a paper, ” and a colloquy followed. The plaintiff inquired as to the nature of the paper, and was then told, “We want you to sign a
The refusal of the defendant’s first request that on all the evidence the plaintiff could not recover shows no error of law. The defendant excepted “to the charge relative to the release.” It is contended the instructions were erroneous. In examining the charge no error is found. The instructions were sufficiently full and clear. “‘If it is found that the plaintiff consented to his release without being brought before a magistrate and waives this requirement of the law and discharges the defendant against any claim for damages, then the jury must find for the defendant.’ I am reading one of the defendant’s requests. So, as far as this phase of the case is concerned, the issue turns upon your determination of the • circumstances under which that release was signed, because the plaintiff says that, while that may be
The exception, “to your charge as to when the arrest took place” not having been argued need not be considered, and, finding no reversible error, the entry must be,
Exceptions overruled.