Opinion
No. 3039
Decided March 7, 1939
An essential element of an action for malicious prosecution is the institution of criminal proceedings against the plaintiff by formal action on the part of some official or tribunal.
An action for false arrest and imprisonment is not maintainable where the arrest of the plaintiff was in no way authorized or requested by the defendant.
B, being importuned for money by A and believing that A was blackmailing him, employed counsel who suggested to a sheriff that he call up the police in a distant city for a confidential report on A. The police thereupon arrested and questioned A. The arrest not being authorized either by B or his counsel, B was not liable for the damages resulting therefrom.
An injury shall be imputed to the last wrong as the proximate cause and not to that which is more remote.
CASE, for malicious prosecution. A trial by jury resulted in a verdict for the plaintiff.
The parties to this action became acquainted with one another in 1931. At that time the plaintiff was operating a night club and gambling establishment in Florida which the defendant, who was a winter visitor in the South, occasionally patronized. Their acquaintance continued and during the next three years the defendant advanced substantial sums of money to the plaintiff which were used by the latter in his business. The defendant, for fear that his mother with whom he lived in East Kingston, New Hampshire, would be distressed to learn that he was financially interested in an enterprise like that conducted by the plaintiff, did not wish it to become generally known that he had made these advances and the plaintiff had full knowledge of this reticence on the defendant's part.
About February 1, 1934, the defendant declined to make any further advances and in consequence thereof the plaintiff was soon thereafter forced to close his club. In settlement of the plaintiff's claim for damages which he alleged he had sustained on this account, the defendant made a further payment of money to the plaintiff for which the latter gave a full release of all his claims and demands.
In May, 1935, the plaintiff met the defendant in Exeter by appointment and, representing himself to be financially destitute, asked for a personal loan. The defendant gave him a non-committal reply and the parties separated. On the day following, the defendant wrote to the plaintiff at his address in Boston to the effect that he could not make the loan requested. Thereafter the plaintiff wrote twice to the defendant repeating his importunities for temporary financial aid. These letters were interpreted by the defendant as containing veiled threats to embarrass him by coming to East Kingston to see him at his mother's house unless the loan were made, and since the defendant wished to go away for a week or ten days, he consulted his counsel and placed the matter entirely in the latter's hands.
This counsel, with the knowledge and consent of the defendant, employed a deputy sheriff to mount guard over the defendant's home for the purpose of keeping the plaintiff from the premises while the defendant was away. Counsel also suggested to the deputy sheriff that he, in his official capacity, call the Boston police to get from them a confidential report on the plaintiff. This was done by the deputy sheriff. Upon receipt of this request for information the police in Boston arrested the plaintiff, took him to headquarters for questioning, and after a few hours, no complaint having been made, released him upon his execution of an agreement to hold the police in no way liable for his arrest and detention.
The defendant's bill of exceptions reciting errors in the admission of evidence, in the allowance of portions of the plaintiff's argument to the jury, in the failure to charge as requested and in the failure to grant his motions for a nonsuit and for a directed verdict was allowed by Connor, J.
John J. Sheehan and William L. Phinney (Mr. Phinney orally), for the plaintiff.
William H. Sleeper, by brief and orally, for the defendant.
In its present form the plaintiff's action cannot be maintained. The reason for this is that one of the essential elements of the action for malicious prosecution is evidence of the institution of criminal proceedings against the plaintiff by formal action on the part of some official or tribunal (38 C.J. 386; Am. Law Inst., Restatement of Torts, s. 654), and in the case at bar it appears that the plaintiff's arrest in Boston was not in consequence of any such formal action. Under these circumstances the appropriate remedy for the plaintiff is by an action of trespass for false imprisonment. Am. Law Inst., Restatement of Torts, s. 35, Comment a.
However, since the pleadings may be amended at any time upon motion (P. L., c. 334, s. 9), and since the plaintiff has had full opportunity to present his evidence, the questions transferred are before us for consideration. Chase v. Bank, 88 N.H. 275.
On this evidence the plaintiff is not entitled to recover under any form of action. This is for the reason that there is nothing to show that either the defendant or his agents ever authorized or requested the arrest of the plaintiff by the Boston police. There is no evidence that the defendant ever communicated with the police at all. All that appears is that the defendant left his counsel in full charge of his affairs while he was away, that this counsel suggested to the deputy sheriff employed by the defendant as a watchman that he call the Boston police for a "confidential report" on the plaintiff, and that this was done. There is no evidence that either of the defendant's agents ever requested the arrest of the plaintiff in Boston or anywhere else and from this it follows that the question of their authority to make such a request on the defendant's behalf is beside the point. The means taken by the police to obtain the information requested of them were of their own choosing. Those means were adopted by the police of their own volition and upon their own initiative. For their choice of means the police and not the defendant are responsible.
Counsel for the plaintiff contends that in spite of the foregoing the defendant might be found liable upon the ground that his agents were acting within the scope of their employment when they asked the Boston police for a confidential report on the plaintiff, and that this request set forces in motion which directly and logically resulted in the plaintiff's wrongful arrest. Even though we assume that the plaintiff's position on the question of the scope of the agents' authority is well taken, and even though we assume that the plaintiff was himself innocent of any wrongdoing, there still remain two answers to this contention. In the first place no wrong was committed against the plaintiff when the defendant through his agents made the request for a confidential report. A does not wrong B by requesting information about him from C. Such a request may only be found to have been wrongful if made by the defendant or his agents without cause and when they knew or ought to have known that by making it some harm would result to the plaintiff. In the case at bar there is no evidence of such knowledge on their part. In the second place, even if the request for a report could be found to have been wrongful, still it became injurious to the plaintiff only in consequence of the subsequent distinct wrongful act of the police in arresting the innocent plaintiff. Under these circumstances, "the injury shall be imputed to the last wrong as a proximate cause, and not to that which was more remote." Cooley, Torts (4th ed.), s. 50, cited in Morier v. Hines, 81 N.H. 48, 56; Davis v. Railroad, 70 N.H. 519, 521.
In view of the result reached we need not consider what effect the release given to the Boston police had upon the plaintiff's rights against the defendant.
Since the defendant's motion for a nonsuit should have been granted his other exceptions do not require consideration.
Judgment for the defendant.
All concurred.