11 Mass. App. Ct. 928

February 3, 1981

The defendant appeals from convictions on indictments charging (1) breaking and entering in the daytime with intent to commit a felony and putting persons lawfully therein in fear, G. L. c. 266, Section 17, and (2) armed robbery, G. L. c. 265, Section 17. A third indictment was placed on file with the defendant's consent, and no appeal has been claimed as to it. The sole issue on appeal concerns a statement volunteered by a police witness in the course of direct examination leading up to his testimony which described the showing of an album from which the defendant's picture had been selected by a victim. The witness, with no question before him, blurted out: "I received information from a reliable informant." No motion to strike was made, and the statement was allowed to stand over the defendant's objection. See Commonwealth v. Welosky, 276 Mass. 398, 417 (1931), cert. denied, 284 U.S. 684 (1932); Commonwealth v. Early, 349 Mass. 636, 637 (1965). There was no error.

An unresponsive answer by a witness need not be struck if the evidence contained therein is both competent and relevant. Commonwealth v. McGarty, 323 Mass. 435, 439-440 (1948). Commonwealth v. Taylor, 327 Mass. 641, 649 (1951). Commonwealth v. Tucker, 2 Mass. App. Ct. 328, 331 (1974). The instant answer, while of slight value, was admissible as a statement of fact relevant to account for the victim's having been shown about 2,000 photographs, with negative results. Commonwealth v. Sepulveda, 6 Mass. App. Ct. 868 (1978). State v. Murphy, 309 So. 2d 134, 135 (La. 1975). Contrast Favre v. Henderson, 464 F.2d 359, 361-362 (5th Cir. 1972).

Judgments affirmed.


11 Mass. App. Ct. 928

February 5, 1981

1. Nothing alleged by the plaintiff or developed by him through affidavits or discovery suggests that the defendant bank acted

Page 929

with an ulterior motive in requesting issuance of a criminal complaint under G. L. c. 266, Section 82, against the plaintiff for concealment of mortgaged property. Accordingly, the trial judge correctly allowed the defendant's motion for summary judgment on the plaintiff's complaint for abuse of process.

Abuse of process consists of using process "to accomplish some ulterior purpose for which it was not designed or intended, or which was not the legitimate purpose of the particular process employed." Gabriel v. Borowy, 324 Mass. 231, 236 (1949). Quaranto v. Silverman, 345 Mass. 423, 426 (1963). Restatement (Second) of Torts Section 682 (1977). Moreover, some damage must have occurred as the natural and probable consequence of the misuse of process. Quaranto v. Silverman, 345 Mass. at 427. Ledgehill Homes, Inc. v. Chaitman, 348 Mass. 777 (1964). For the purposes of this tort, "process" refers to "the papers issued by a court to bring a party or property within its jurisdiction." Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 390 (1975). Chemawa Country Golf, Inc. v. Wnuk, 9 Mass. App. Ct. 506, 508. The only process employed by the defendant in the instant case was the criminal complaint for concealment of mortgaged property. There is no dispute on the record concerning the plaintiff's failure, after default on a note to the defendant bank, to produce a motorcycle in which he had given the bank a security interest. Therefore the bank was warranted in requesting the complaint under G. L. c. 266, Section 82. The capias warrant which later issued for the plaintiff's arrest (which the plaintiff alleges led to the loss of his job) was not urged by the bank, but resulted from the plaintiff's failure to appear in court for a scheduled hearing. Compare Cotter v. Nathan & Hurst Co., 218 Mass. 315, 316 (1914). Not only did the bank not direct or encourage the plaintiff's arrest, but it had no control over the criminal proceedings which led to that arrest. Leventhal v. Dockser, 358 Mass. 799 (1970).

2. The plaintiff's complaint against the bank under G. L. c. 93A, Section 9, is defeated, as the plaintiff conceded at argument, by Murphy v. Charlestown Sav. Bank, 380 Mass. 738, 742-750 (1980).

Judgment affirmed.