ALAN PINSHAW vs. METROPOLITAN DISTRICT COMMISSION.

JACOBS, J. Following the decision in Pinshaw v. Metropolitan Dist. Commn., 402 Mass. 687 (1988), in which a divided court reversed a summary judgment for the defendant Metropolitan

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District Commission (MDC), this case was tried in the Superior Court. At the trial, the plaintiff, Alan Pinshaw, acting under an assignment of rights to indemnification [Note 1] from Frederick Monk, an MDC police officer, sought recovery of damages and fees previously awarded Pinshaw in a civil rights suit he had filed against Monk in the United States District Court. In the Federal suit, Pinshaw had alleged that Monk had initiated a false and retaliatory criminal action against him after he complained to Monk's superiors of his "incivility" toward him. [Note 2] Judgment that Pinshaw take nothing was entered in the Superior Court after the jury found, in response to a special verdict question, that Monk had not acted within the scope of his official duties. In this appeal, Pinshaw claims the judge erred when he denied his motion for a new trial. We agree.

Pinshaw's principal argument is that the jury was inadequately instructed on ratification, an issue discussed in the prior decision, Pinshaw v. Metropolitan Dist. Commn., supra at 695-696, and raised by the evidence at trial. The only instruction which could be construed as touching on ratification was:

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"Moreover, if you find that Monk's superiors knew that he had filed a false criminal complaint, and that they did nothing about it, you may consider that evidence on the question of whether they believed him to be within the scope of his official duties."

Upon completion of the judge's instructions, Pinshaw objected to the judge's "failure to give a full ratification or endorsement instruction as [requested]." [Note 3]

It is a well established principle that an employer is not only liable for torts committed by its servants acting within the scope of their employment but, "by ratification may become responsible for such acts when committed in excess of their authority." White v. Apsley Rubber Co., 194 Mass. 97, 99 (1907), and cases cited. See Restatement (Second) of Agency Section 218 comment a (1958). The court in Pinshaw indicated that ratification might be an issue in the case to be tried in the Superior Court. In its decision, it stated that "[t]he fact that Monk's superiors knew of the retaliatory action is some evidence they may have endorsed or ratified Monk's action . . ." (emphasis supplied). Pinshaw v. Metropolitan Dist. Commn., supra at 695. The court thereby intimated

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that the issue of ratification was related to whether Monk's action might be encompassed within the statutory requirement that the alleged civil rights violation be found to be within the scope of his official duties in order to entitle Monk to indemnification. Note 1, supra. Thus, the law of the case was clearly established for trial. See Boyd v. Taylor, 207 Mass. 335, 336 (1911); Hetherington & Sons v. William Firth Co., 212 Mass. 257, 260 (1912).

The evidence at the trial raised an issue of ratification principally through the testimony of Monk's superior, Captain Elliott, who told of initially receiving Pinshaw's complaint about Monk, learning of Monk's application for a criminal complaint against Pinshaw in the Roxbury District Court, suspending any further investigation, and advising Pinshaw that the incident would be settled in that forum. Elliott also testified that the investigation of Pinshaw's original complaint was not reopened, and that Monk was never disciplined, that he believed the matter had been resolved in the Roxbury District Court [Note 4] and that he was unaware of any further difficulty until the Federal action was filed. Accordingly, an appropriate instruction on ratification was required.

The instruction in issue neither adequately informed the jury that ratification by Monk's superiors could transform an unauthorized act into statutorily indemnifiable conduct nor fully explored the issue of ratification. It also erroneously focused on the subjective belief of Monk's superiors as to his actions. The jury should have been instructed to address the issue of ratification if they found that Monk's motivation for bringing the criminal complaint precluded a determination that he acted within the scope of his official duties. In that event, the issue is whether ratification by Monk's superiors could be inferred from the circumstances. As indicated by the Supreme Judicial Court, knowledge of Monk's retaliatory

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action may be evidence of ratification. Pinshaw v. Metropolitan Dist. Commn., supra at 695. See Perkins v. Rich, 11 Mass. App. Ct. 317, 322-323 (1981) (knowledge or imputed knowledge of what an investigation might disclose is necessary to establish ratification by a superior of unauthorized acts of agent). Compare Smith v. Boston, 413 Mass. 607, 617 (1992).

Among other factors which may be considered evidence of ratification on the part of a superior are a failure to investigate and discipline an employee, see Pusateri v. E. F. Hutton & Co., 180 Cal. App. 3d 247, 253 (1986) (cited in Pinshaw v. Metropolitan Dist. Commn., supra at 696), allowing an improper prosecution to proceed, see Conklin v. Consolidated Ry., 196 Mass. 302, 308 (1907), and failure to disavow an employee's unauthorized action and to mitigate the harm caused once the facts are ascertained. See Boice-Perrine Co. v. Kelley, 243 Mass. 327, 330-331 (1923). Even when the evidence supporting such an inference is slender, "[t]he question of ratification should [be] submitted to the jury under appropriate instructions." Id. at 331.

An issue argued by Pinshaw which may arise on retrial involves the admission in evidence of redacted versions of two paragraphs of his complaint in the Federal action. To the extent that these pleadings contained more than formal allegations, they may be admissible as evidentiary admissions, even absent evidence that they were approved by Pinshaw. Clarke v. Taylor, 269 Mass. 335, 337 (1929). See Liacos, Massachusetts Evidence 280 (5th ed. 1981). The pleadings alleged that Monk knowingly filed a false complaint for the purpose of punishing Pinshaw for his complaint against Monk. They could be viewed as relevant in that they revealed a position inconsistent with one of Pinshaw's claims in the indemnification action to the effect that Monk's actions were within the ordinary scope of his authority. See Mitchell v. Fruehauf Corp., 568 F.2d 1139, 1147 (5th Cir. 1978). As the evidence had some, albeit slight, probative value, its admission must be left to the broad discretion of the judge, see DeJesus v. Yogel, 404 Mass. 44, 47 (1989), along with the question of

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whether that value was outweighed by its potential prejudicial effect: Liacos, Massachusetts Evidence 408-410 (5th ed. 1981). See Vincent v. Louis Marx & Co., Inc., 874 F.2d 36, 41 (1st Cir. 1989).

We decline Pinshaw's invitation to review the judge's instructions as to the provision in G. L. c. 258, Section 9A, which would prohibit indemnification if Monk "acted in a willful, wanton, or malicious manner." The jury did not reach the special question which addressed that provision. Given our decision, any analysis of the possible prejudicial effect of the judge's instruction on the jury's response to the scope of duty question would involve us in unnecessary speculation.

Accordingly, the order denying the motion for new trial is vacated, the judgment is reversed, and the case is remanded to the Superior Court for further proceedings.

So ordered.