Brown v. Wimpenny , 239 Mass. 278 ( 1921 )

Jenney, J.

Everett C. Brown, the plaintiff in one of the cases now decided, in the different counts of his declaration alleges in substance that the defendants maliciously and without probable cause instituted or caused to be instituted criminal proceedings against him which have terminated in his favor; that they entered into a conspiracy to force him to leave the town of Edgartown in which he carried on business as a barber, and to effectuate said purpose caused complaints to be made in the District Court of the County of Dukes County, charging him with the crime of larceny, hired counsel to prosecute said complaints and produced witnesses at the trial thereof; and that the proceedings under the complaints were terminated in his favor. Luella Norton, who is thejplaintiff in the other action, alleges that the defendants were responsible for similar infringements of her legal rights. It is assumed for the purpose of this decision that the declarations set forth good causes of action. The defendants did not demur.

The actions were tried together before a jury, and the plaintiff in each case had a verdict against George N. Cleveland, one of the defendants. Verdicts were ordered in favor of the other defendants, Theodore S. Wimpenny and Alfred A. Averill, and the cases are here on the plaintiffs’ exceptions to this direction. Cleveland has died since the rendition of the verdicts, and the actions are now pending only against Wimpenny and Averill who are hereinafter called the defendants.

The principal question for decision is whether there was any evidence for the jury that the defendants were responsible for what happened to the plaintiffs. They were, throughout the time involved in the proceedings, selectmen of Edgartown. A careful examination of the bill of exceptions discloses no participation in or control over the proceedings. There was evidence in behalf of the plaintiff that Wimpenny when near or in front of the plaintiff Brown’s place of business not infrequently “stare[d] in;” that he talked with Brown’s customers and with others, shook his finger at Brown and made faces at him; that he ordered the town officer in charge of highways to remove a sign belonging to Brown which projected into the highway; that the plaintiff Brown had heard the defendant Wimpenny when under the influence.of liquor say in a low voice, “ I will fix that fellow, I will get him out of town;” that Averill, who had been a customer of the plaintiff Brown, •ceased to patronize him; and that both defendants were present when the criminal cases against the plaintiffs were on trial. These facts fall far short of showing any instigation, direction or control of the criminal proceedings against the plaintiffs by the defendants, ■or any conspiracy on their part.

The plaintiffs, however, argue that there was evidence warranting submission of the cases to the jury (assuming that other ■essential elements necessary to constitute an infraction of their legal rights were established) because the jury could have found that the defendants as selectmen of Edgartown directed Mr. Hillman, who was and had been for many years counsel for that town, to appear in the prosecution of the criminal proceedings against the plaintiffs. The defendant Wimpenny, called as a witness by the plaintiffs, in the course of his direct examination testified, “ It is the custom in all the towns in Dukes County to employ counsel for an officer to prosecute when requested to do so.” This was corroborated by testimony offered by the defendants. The defendant Averill, also called by the plaintiffs, testified, while ■under examination by them, that he did “ agree to employ Mr. Hillman to prosecute the liquor case against Mr. Brown; that Mr. Coffin, chairman of the Board, had asked Mr. Hillman to appear.” Mr. Coffin died before institution of the actions. On examination in his own behalf and that of the other defendants, Averill testified that “ so far as he knew no directions or instructions of any kind were given to Mr. Hillman . . . beyond assisting and advising the constable.” The jury were not obliged to believe this; but there was no evidence to the contrary, and disbelief of the testimony did not tend to prove that the defendants did give directions or instructions to Mr. Hillman, or that they assumed to control or direct or did control or direct his actions, or that he represented them or either of them.

The plaintiffs contend that the employment of counsel, purporting to represent the town and at its expense, rendered the attorney so employed in effect the agent of the defendants, and that they were liable for what he did in prosecution of the criminal complaints and that they were chargeable with his knowledge. There was no evidence tending to show that the defendants in employing counsel at the expense of the town acted maliciously, ■ rather to injure the plaintiffs than to discharge a duty customarily performed in behalf of the public. They assumed no control or direction of the prosecutions, and committed no personal act of misfeasance. It could not have been found that Mr. Hillman was their agent. He neither acted in their behalf nor on their credit. It follows that the wrong committed, if any, was not the tort of the defendants, and that verdicts were properly ordered in their favor. Armstrong v. Stair, 217 Mass. 534. Healey v. Lothrop, 171 Mass. 263. Moynihan v. Todd, 188 Mass. 301,304. Barry v. Smith, 191 Mass. 78, 89. Farrigan v. Pevear, 193 Mass. 147, 150. Johnson v. Somerville, 195 Mass. 370. Stiles v. Municipal Council of Lowell, 233 Mass. 174. This result is not affected if it be assumed that the defendants as selectmen had no right to engage counsel. The relation of principal and agent between the selectmen and the person employed did not arise even if there was lack of authority to bind the town by the employment. See Brown v. Edgartown, 236 Mass. 258.

The remaining exceptions need not be considered in detail. If there was error it did not prejudice the plaintiffs. As the evidence admitted under their exception did not impair nor destroy the probative effect of that which had been received without exception on their part, it could not affect the question of whether thete was evidence sufficient to warrant the submission of the cases to the jury. So far as the evidence excluded is set forth in the exceptions, its admission would not have entitled the plaintiffs to go to the jury, as it did not add to the effect of that already in the case so far as it related to the question of liability.

Exceptions overruled.