MARY R. CARROLL vs. JAMES J. GILLESPIE & another. [Note 1]

GREANEY, J. The plaintiff brought this action to recover damages from the defendants James J. Gillespie (Gillespie) and Gillespie Ford Sales, Inc. (dealership) on six separate theories, including malicious prosecution, abuse of process and slander. At trial in the Superior Court, the defendants filed motions for directed verdicts, Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974), which were denied as to the three

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claims above. [Note 2] The issues were then submitted to the jury by way of special questions. Mass.R.Civ.P. 49(a), 365 Mass. 812 -813 (1974). In answer to those questions, the jury found for the plaintiff on the claims for malicious prosecution and abuse of process, and assessed damages in the amount of $7,500 on each claim. The jury found for the defendants on the claim for slander. Judgment was entered on the verdicts in the amount of $15,000, and the defendants appealed. [Note 3] The issue presented is whether the defendants' motions for directed verdicts on the claims for malicious prosecution and abuse of process were properly denied. We hold that they were.

The evidence presented at trial leaves material facts in dispute. See note 10, infra. We therefore view the evidence in the light most favorable to the plaintiff. Willis v. Gurry, 331 Mass. 19, 20, 21-22 (1954). Quaranto v. Silverman, 345 Mass. 423, 424 (1963). Smith v. Eliot Sav. Bank, 355 Mass. 543, 545 (1969). Seelig v. Harvard Coop. Soc., 1 Mass. App. Ct. 341, 343-344 (1973). So viewing the evidence, the jury could have found the following facts.

The plaintiff lived with one Frank Carroll in a house which they owned in Marshfield. During the period in issue, Carroll was working in Alliance, Ohio, and the plaintiff made several trips between Marshfield and Alliance, living for various periods in each place. In December, 1975,

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while in Marshfield, the plaintiff damaged Carroll's car in an accident, and it was taken to be repaired at Gillespie Ford. Due to a mistake, however, the dealership's form order for the repairs was made out in the name of "Fran" (rather than Frank) Carroll. [Note 4]

Several weeks later, lacking local transportation, the plaintiff joined Carroll in Ohio. She remained there for several months, apparently due in part to the fact that the insurance coverage for the repairs was disputed, and ultimately denied. In the last week of March, 1976, the plaintiff returned to Marshfield, and Carroll sent her the funds necessary to pay for the repairs. The funds were sent in the form of a certified check for $1,500, drawn by Carroll on the First National City Bank of Alliance, Ohio. The check, however, was payable not to the dealership, but to "Mrs. Mary Carroll."

On April 1, 1976, the plaintiff went to the dealership to pick up the car. In payment for the repairs, the plaintiff gave the certified check to the dealership's cashier. The bill totalled $1,425.65, and the cashier returned $74.35 in change. By inadvertence, however, the plaintiff had failed to endorse the check, and the cashier failed to notice that there was no signature on the back. Several days later, the plaintiff left Marshfield and rejoined Carroll in Ohio. [Note 5]

On April 2, 1976, the dealership deposited the check to its account with the Lincoln Trust Company in Marshfield.

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On April 12, 1976, the bank returned the check to the dealership with a stamped notation that it lacked the endorsement of the payee. The dealership received the check by April 13, 1976. On April 14, 1976, the dealership redeposited the check. At that time, a signature appeared on the back in the name of "Mrs. Mary Carroll."

On June 16, 1976, the Ohio bank which issued the check asked the plaintiff in Alliance to examine the endorsement. She did so, and stated that the signature was not hers. At the request of the bank, she then signed a form affidavit which stated that she had not endorsed the check nor authorized anyone else to do so; that she had not received any proceeds or benefit from the check; and that the signature of endorsement was a forgery. The Ohio bank then returned the check to the Lincoln Trust Company. On June 24, 1976, Lincoln Trust informed Gillespie by letter that there had been an "alleged forgery of endorsement," and returned the check along with a copy of the plaintiff's affidavit.

On June 25, 1976, Gillespie went to the Plymouth District Court and met with Sergeant Andrew P. Gerard, a Marshfield police officer and the town prosecutor. From the officer's testimony at trial, and his original written report, the account of that meeting most favorable to the plaintiff appears as follows. Gillespie showed the officer the check, the affidavit, and the bank's letter, and told him that he had received a bad check for car repairs from a woman who identified herself as Fran Carroll. Specifically, Gillespie represented that the endorsement on the check had been forged, that "Mrs. Carroll was the person that forged it," and that she had done so "in the . . . [dealership] office." He also stated that his son had seen a "for sale" sign on her house, that she was "about to leave for Ohio with the motor vehicle" which the dealership had repaired, and that she also used the name Romanski. [Note 6] Gillespie further told the

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officer that "he wanted his money for the check" and that "he wanted the police to arrest" the plaintiff.

Officer Gerard advised Gillespie, according to "standard policy," that the acts which he alleged amounted to felonies, that these were serious charges, and that they were likely to lead to the plaintiff's arrest. He further informed Gillespie that the police department was "not concerned with the restitution of his monies . . . [but with] criminal acts," and that it was "not a collection agency." Gillespie acknowledged that he understood the seriousness of his charges, including the possibility that the plaintiff would be arrested. The officer proceeded to confirm that there was a "for sale" sign on the plaintiff's house and that no one was at home. He then applied for complaints charging the plaintiff with forgery, uttering a false instrument, and larceny by false pretense. [Note 7] The complaints issued that same day, along with three warrants for the plaintiff's arrest.

On or about August 13, 1976, the plaintiff returned to Marshfield. Gillespie apparently learned of her return. On August 16, 1976, he called the Marshfield police and told them that she was at home. That evening, two officers went to the plaintiff's home and arrested her. She was placed in the back of the cruiser, taken to the police station, and booked on the outstanding charges. The plaintiff spent that night in jail. She was arraigned the following morning, and then released on bail pending trial.

At the arraignment, the judge asked Officer Gerard to inquire of Gillespie whether he could provide a witness at trial who actually saw the plaintiff sign the check. The officer did so that afternoon, and Gillespie said that he could. At trial on October 19, 1976, Gillespie failed to appear but sent the dealership's cashier, one Joseph Comich, as a witness. Comich testified that he had accepted the check, but could not recall whether he saw the plaintiff endorse it, or whether

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it was endorsed when he received it. Officer Gerard attempted to consult Gillespie but was told that he could add nothing to the cashier's testimony. Following trial, the plaintiff was acquitted on all three charges.

At the trial of the present action Gillespie was called by the plaintiff. He admitted that when he met with Officer Gerard on June 25, 1976, he did not know who had endorsed the check, and that he currently had "no idea" whether it was the plaintiff who signed it. Gillespie denied telling the officer that the check was signed in the dealership office. At trial, his testimony was that he (Gillespie) "was told" that sometime between April 12 and April 14, 1976, an employee of the dealership went to the plaintiff's house with the check and gave it to Carroll, who took it inside, and returned it bearing an endorsement. On cross-examination, however, he testified that this employee did not see the plaintiff at the house; that the employee did not see who signed the check; and further, that none of the dealership's employees saw the signing of the check at any time.

Gillespie admitted telling Officer Gerard that "I wanted to collect my money," and admitted that this was, in fact, his purpose. [Note 8] He denied telling the officer that he wanted the plaintiff arrested, but conceded that he probably said that he "wanted her brought into court." In general, Gillespie

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took the position that he left the matter "in the incapable [sic] hands of Sergeant Gerard." [Note 9]

1. Malicious prosecution. In an action for malicious prosecution, "the essence of the tort is . . . interference with the right to be free from unjustifiable litigation." Foley v. Polaroid Corp., 381 Mass. 545, 552 (1980), citing Prosser, Torts Section 119, at 834 (4th ed. 1971). The essential element to be proved is that the defendant lacked probable cause to believe that the plaintiff had committed the crime charged, and the plaintiff has the burden of proving that element. Morreale v. DeZotell, 10 Mass. App. Ct. 281, 281-282 (1980), and cases cited.

The defendants argue that the plaintiff's proof was insufficient to support a finding that Gillespie lacked probable cause. In addition, they contend that even if probable cause was lacking, Officer Gerard's official decision to bring the complaints relieved the defendants of responsibility for the prosecutions. We review these arguments in the context of motions for directed verdicts under the rule that "if there is any evidence to support . . . [findings] essential to the maintenance of the cause of action, it must be submitted to the jury." Willis v. Gurry, 331 Mass. at 21-22. See Boyle v. Wenk, 378 Mass. 592, 593 (1979). [Note 10]

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Probable cause in the context of a civil action for malicious prosecution [Note 11] has long been defined as "such a state of facts in the mind of the . . . [defendant] as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion," that the plaintiff had committed a crime (emphasis supplied). Lincoln v. Shea, 361 Mass. 1, 4-5 (1972), quoting from Muniz v. Mehlman, 327 Mass. 353, 359 (1951), quoting from Bacon v. Towne, 4 Cush. 217, 238-239 (1849). As this definition suggests, probable cause is judged by an objective, rather than a subjective, standard. Seelig v. Harvard Coop. Soc., 1 Mass. App. Ct. at 344. See Coblyn v. Kennedy's, Inc., 359 Mass. 319, 326 (1971). Thus, the defendant's belief in the plaintiff's guilt must have been such as would exist "in the mind of a reasonable man." Bacon v. Towne, supra at 239. Stone v. Crocker, 24 Pick. 81, 86 (1832) ("an ingenuous and unprejudiced man, of common capacity, in the defendant's situation").

In determining whether the defendant's belief was reasonable in an objective sense (or more accurately, whether the evidence supported a finding that it was unreasonable), we examine the information known to him "at the time he instituted the complaint rather than . . . what may turn out later to have been the actual state of things." Lincoln v. Shea, supra at 5, quoting from Muniz v. Mehlman, supra. Implicit in this inquiry, however, is the question whether it

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was reasonable for the defendant to have relied upon that information, given its quality, quantity, and the availability of additional information. The answer to this question depends on the facts of the individual case. In several instances, the information known to the defendant was held to have been so trustworthy as to require the conclusion, as matter of law, that reliance upon it was reasonable. See Seelig v. Harvard Coop. Soc., supra at 346-347 (defendant knew that plaintiff had made written confession, though he was unaware that police officer may have dictated portions). See also Lincoln v. Shea, supra at 5-6 (defendant knew that plaintiff's driver's license was under suspension, though he was unaware that the snowplow plaintiff was driving did not fit the statutory definition of a motor vehicle). In some situations, then, knowledge of reliable information relieves the defendant of "the obligation of sifting and evaluating other possibly exculpatory evidence" regarding the crime of which the plaintiff is suspected. Seelig v. Harvard Coop. Soc., supra at 347. [Note 12]

In several other cases, however, the information known to the defendant was held to have been sufficiently unreliable or incomplete to support a finding that it was unreasonable to rely upon it without additional information. See Griffin v. Dearborn, 210 Mass. 308, 313 (1911) (where defendant knew that his horse was taken by G's minor son, and did not know whether the son did so, as the son claimed, on order from G, "[t]he defendant's immediate prosecution of the son without any precedent investigation" could be found to lack reasonable grounds); Smith v. Eliot Sav. Bank, 355 Mass. at 548 (where defendant bank failed to pursue information as to whereabouts of S, in whose name unauthorized withdrawals were made, and teller identified the plaintiff as forger seven months after brief withdrawal transaction, jury could have found that identification was

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"so suspect that a `man of ordinary caution and prudence' would not have relied upon it," quoting from Bacon v. Towne, 4 Cush. at 239).

From these cases, it appears that private persons are not at liberty to initiate criminal prosecutions precipitously, on the basis of information which is neither reasonably complete nor reliable. Rather, where a person has some information which suggests that another has committed a crime, it is first "[h]is duty . . . to ascertain . . . whether there is reasonable and probable cause for a prosecution." Herniman v. Smith, [1938] A.C. 305, 319, quoted in Higgins v. Pratt, 316 Mass. 700, 709 (1944), and Muniz v. Mehlman, 327 Mass. at 360. Where that duty is not satisfied, a complainant will be subject to liability under the general principle outlined long ago by Chief Justice Shaw: "A man ought not to take out legal process, to . . . arrest the person of another, without some knowledge on the subject; and he ought to be responsible for the consequences, if he does this in utter recklessness and ignorance." Willis v. Noyes, 12 Pick. 324, 327 (1832), quoted in Higgins v. Pratt, supra at 710. More recently, the principle for determining liability has been defined in specific terms by the Restatement (Second) of Torts (1977), which summarizes the current test of probable cause as follows: "the defendant has probable cause only when a reasonable man in his position would believe, and the defendant does in fact believe, that he has sufficient information as to both the facts and the applicable law to justify him in initiating the criminal proceeding without further investigation or verification." Id., Section 662, Comment j, at 429. [Note 13]

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Applying these principles here, in the context of motions for directed verdicts, we think that the information known to Gillespie was insufficient to require the conclusion, as matter of law, that it was reasonable to initiate complaints against the plaintiff without obtaining additional information. Gillespie specifically represented to Officer Gerard that the plaintiff had committed a "forgery." In view of that representation, the issue of probable cause turned on whether it was reasonable for Gillespie to believe that it was the plaintiff who endorsed the check. We examine the essential evidence on that issue.

Gillespie testified at trial that he was not personally involved in the dealership's handling of the check until June 24, 1976, when he received the check back from the bank along with a copy of the plaintiff's affidavit. Even if we accept that testimony, however, it is clear that Gillespie learned at least the following facts at that time: that the check was not endorsed when the dealership originally received it; that it had previously been returned by the bank for that reason; that it was then redeposited by the dealership with a signature on the back; and that the plaintiff had sworn in an affidavit that she did not sign the check, and that her signature had, in fact, been forged. In addition, Gillespie admitted at trial that he had no personal knowledge then, or at any other time, whether the plaintiff had signed the check. Based on these facts, the jury could certainly have found that at the time Gillespie first became involved in the matter, which was the day before he met with Officer Gerard, he lacked

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probable cause to charge that the plaintiff had committed a forgery. Moreover, the jury could have concluded that given the plaintiff's assertion that she did not endorse the check, and particularly given Gillespie's previous lack of involvement, a reasonable person in his position would have considered the possibility that one of his own employees had signed the check, and would have investigated that possibility. [Note 14]

Gillespie testified that he attempted in several ways to obtain additional information on the matter. However, we do not think those efforts, viewed in the light most favorable to the plaintiff, were sufficient to require a finding that his duty of reasonable investigation had been satisfied. [Note 15] Nor did those efforts yield sufficient information to require a

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finding that probable cause existed. The only additional information which Gillespie obtained was that an employee had allegedly taken the check to the plaintiff's house and returned to the dealership with the endorsement. We do not deal with the credibility of Gillespie's testimony on this point. It is clear from his own testimony, however, that he may have heard this information from an employee other than the one involved; that the employee did not see the plaintiff endorse the check; and that he did not even see her present at the house. Given such defects, this information lacked reliability, and did nothing to show that it was reasonable for Gillespie to believe that the plaintiff was the person who signed the check. [Note 16] Moreover, it appears that Gillespie did not relate this account of the endorsement to Officer Gerard, but told him that the check was endorsed in the office of the dealership, a discrepancy which is not explained by the record.

In sum, we think the evidence permitted a finding that Gillespie recklessly made categorical statements to Officer Gerard accusing the plaintiff of forgery based on ambiguous and superficial information, and that those statements resulted in the plaintiff's arrest. [Note 17] It is established in a related

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context that an individual's freedom of movement cannot be subject to the "`honest . . . suspicion' of a shopkeeper . . . [acting] on his own `inarticulate hunches.'" Coblyn v. Kennedy's, Inc., 359 Mass. at 325 (false arrest). Likewise, in the present context, probable cause requires not only a subjective belief that another has committed a crime, but also objective facts which provide reasonable support for that belief. See Restatement (Second) of Torts, supra. In the present case, we conclude that the objective facts supporting the defendants' belief were insufficient to require that verdicts be directed in their favor, and that the issue of probable cause was properly left to the jury.

Our conclusion is not altered by the defendants' alternative argument that Officer Gerard's official decision to bring the complaints relieved them of responsibility for the prosecutions. It is apparent from the discussion above that this is not a case in which the defendant "made a fair and full presentation of facts to the officer and left the course to be pursued to his judgment without pressure or coercion." Mason v. Jacot, 235 Mass. 521, 525-526 (1920), summarizing the situation in Burnham v. Collateral Loan Co., 179 Mass. 268, 273-274 (1901). See Seelig v. Harvard Coop. Soc., 355 Mass. 532, 536 (1969). Here, Gillespie specifically told Officer Gerard that "he wanted the police to arrest" the plaintiff, or at least that he "wanted her brought into court." In this situation, the officer's application for the complaints "might fairly be regarded as within the terms of the directions given to [him]" by the defendant. Mason v. Jacot,

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supra at 525. See Griffin v. Dearborn, supra. Accordingly, the defendants' motions for directed verdicts were properly denied on this ground.

2. Abuse of process. As to the abuse of process claim, the defendants likewise argue that the denial of their motions for directed verdicts was error. On the evidence discussed above, we disagree. The essence of this tort is the malicious use of legal 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." Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 389 (1975), quoting from Quaranto v. Silverman, 345 Mass. at 426. Chemawa County Golf, Inc. v. Wnuk, 9 Mass. App. Ct. 506, 508-509 (1980). See Restatement (Second) of Torts, supra, Section 682, Comment a, at 474; Prosser, Torts, supra, Section 121, at 856-857. Here, the evidence was sufficient to support findings that Gillespie initiated the complaints with knowledge that they were groundless, see Lorusso v. Bloom, 321 Mass. 9, 10 (1947), and cases cited; Prosser, Torts, supra; that he sought to use the criminal process to collect a civil debt, see note 8, supra; cf. Griffin v. Dearborn, supra; Pihl v. Morris, 319 Mass. 577, 580 (1946); and that he did so in spite of Officer Gerard's explicit warning that this was not its proper purpose. The defendant's motions were therefore properly denied.

Judgment affirmed.