Smith v. Milne ( 1928 )

Carroll, J.

These two actions of tort were tried together. The action against Milne, an attorney at law, was brought to recover damages for bringing an ejectment proceeding against Smith, the plaintiff in this action, without authority from Josephine A. Slack, the plaintiff named in the ejectment proceedings, with malice and without probable cause. The action against Guttentag, a constable, was in substance that he served the writ in the ejectment case maliciously and without authority. In each action the trial judge found for the defendant. In the Appellate Division of the Municipal Court of the City of Boston the report was dismissed. The plaintiff appealed.

There was evidence from one Folger, who was an agent of Mrs. Slack and in charge of the property, that he was directed by her to eject Mrs. Smith from the premises and “to hire a lawyer”; that he told Guttentag “to serve on Mrs. Smith fourteen days notice and if she don’t pay to evict her”; “that later Mr. Guttentag informed him that he had engaged counsel to bring ejectment proceedings against Mrs. Smith.” The judge was fully warranted on this evidence in finding that the ejectment proceedings were brought with the authority of Mrs. Slack. The agency of Folger could be shown by his testimony. Haney v. Donnelly, 12 Gray, 361, 362. In each case the order dismissing the report is affirmed. °

So ordered.