White v. Apsley Rubber Co., 194 Mass. 97

White v. Apsley Rubber Co.

194 Mass. 97 | Mass. | 1907

Braley, J.

While not expressly conceded, yet upon uncontroverted evidence it is manifest that a complaint had been made under R. L. c. 208, § 116, charging the plaintiff with the crime of wilfully and maliciously injuring the personal property of the defendant. A warrant having been issued he was arrested at his home, and after being detained in custody for an appreciable time by the officer serving the process, he was released, while no further steps ever were taken in the prosecution of the case. Upon conflicting evidence, the weight of which was wholly for the jury, they further could find that the criminal proceedings were instituted solely for the purpose of coercing the plaintiff to abandon any claim or right he might have to occupy the house as a tenant, and that when this object had been accomplished by a surrender of his tenancy, and the removal of his family and household goods, he was released from arrest. Indeed, it must have been perfectly plain, if either his evidence or that of his wife was accepted as substantially stating what occurred, that the criminal law was invoked, not for the purpose of vindicating justice, but to get rid of a troublesome tenant. If so found, there was an abuse of criminal process, and this is sufficient to support an action against the instigator and promoter of the wrong. Wood v. Graves, 144 Mass. 365, 366. White v. Apsley Rubber Co. 181 Mass. 339.

It is strongly urged that the defendant cannot be held liable, as the wrong was perpetrated without its authority, or subsequent assent. But it is responsible for torts committed by fits servants when acting within the scope of their employment, or by ratification may become responsible for such acts when committed in excess of their authority. Reed v. Home Savings *100Bank, 130 Mass. 443. Krulevitz v. Eastern Railroad, 140 Mass. 573; S. C. 143 Mass. 228. Fogg v. Boston & Lowell Railroad, 148 Mass. 513. Nims v. Mount Hermon Boys’ School, 160 Mass. 177, 178. Comerford v. West End Street Railway, 164 Mass. 13, 14. Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294. Dempsey v. Chambers, 154 Mass. 330. If, therefore, there was evidence that the prosecution was set on foot by the defendant’s bookkeeper while acting as its servant in the discharge of his duties, or that his acts were subsequently ratified, the defendant must respond for the damages suffered. While the title to the premises was in a stranger, yet the defendant, as lessee, was in possession, and rented the property to the plaintiff together with the furniture which it owned, for the purpose of his keeping a boarding house for the accommodation of its employees, and there was evidence from which it could have been found that the general supervision of the rental and management of the house while thus occupied had been entrusted to the defendant’s bookkeeper, whose declarations and conduct, consequently, were admissible in evidence. The plaintiff’s tenancy was about to be terminated, and apparently he was only waiting for the notice provided by R. L. c. 129, § 12, to vacate the premises, when the bookkeeper made the complaint, gave it to the officer for service, and caused the arrest to be made. If the plaintiff’s retention of the stove covers was mistakenly treated as a malicious injury to the personal property belonging to the defendant, yet by his general employment the bookkeeper was authorized to take appropriate action to prevent their wrongful removal, although it now is urged that they were a part of the realty. In the performance of this duty if he acted recklessly, being intent on ejecting the plaintiff, by using the criminal process as a means of compelling him to vacate, the defendant is liable for his tortious act. Aiken v. Holyoke Street Railway, 184 Mass. 269, 274. Besides, if original authority were wanting, there was evidence from which ratification could be found, for a director of the defendant empowered to act as a general manager of its business, and the president.of the company, each had knowledge of the measures taken, and either assented, or declined to interfere. Beacon Trust Co. v. Souther, 183 Mass. 413, 416, 417.

*101What already has been said concerning the issues at the trial, and the supporting evidence, disposes of the exceptions to the refusals to rule as requested, for these requests so far as applicable were embodied in other language in instructions which fully and accurately stated the law. Graham v. Middleby, 185 Mass. 349, 354. White v. Apsley Rubber Co., ubi supra.

Exceptions overruled.