JOSEPH BROUSSARD vs. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY.

SPALDING, J. The question for decision in this action of tort for malicious prosecution is whether the judge erred in entering a verdict for the defendant under leave reserved.

The incident which gave rise to the present action occurred in the defendant's store at 988 Massachusetts Avenue, Cambridge, on the morning of January 31, 1942. The store is of the so called cash and carry type, where a customer selects his merchandise at the various counters and pays for it as he leaves the store after it has been checked by a cashier.

The plaintiff's testimony was as follows: He entered the defendant's store between 9:30 and 10 A.M. for the purpose of meeting his wife with whom he was to do some shopping. His wife was late. At that time there was a sugar shortage and he noticed a sign which read "Sugar, one pound to a customer," and he obtained a pound and paid for it at the cashier's desk. He then went across the street to a First National store to compare prices. He returned to the defendant's store where he met a friend, one Jones, who offered him a cigarette. Having the package of sugar in one hand and an article in the other, he put the sugar in his inside pocket and lit the cigarette. In a few minutes his wife arrived and they made some purchases (including a pound of sugar), paid for them at the cashier's desk, and left the store. Just as they had gotten outside the store, St. George, the defendant's assistant manager, tapped the plaintiff on the shoulder and told him that the manager wanted to see him. He returned with St. George and went into a room in the rear of the store where McVittie, the manager, and several other employees of the defendant

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were present. McVittie said that he would like to check the plaintiff's packages and the plaintiff told him to "go ahead." The purchases corresponded with the sales slip. While this was being done, St. George put his hand in the plaintiff's inside pocket and pulled out a package of sugar. The plaintiff protested, contending that he had purchased it earlier and that it would not appear on the sales slip which they were checking. McVittie and St. George then accused the plaintiff of stealing, and told him that if he would sign a form admitting the theft they would "forget all about it," and that if he did not sign it they would call a police officer. The plaintiff refused to sign the form and McVittie called a police officer, one Healey, who, after hearing the stories told by the plaintiff and the defendant's employees, refused to make an arrest and told McVittie that he could "swear out" a complaint if he wanted to.

One Gorse, an employee of the defendant, testified that on the day in question he was in charge of the dairy counter where sugar was dispensed; that he handed a bag of sugar to the plaintiff around ten o'clock; that about an hour and a half later he handed a bag of sugar to a woman who later proved to be the plaintiff's wife; and that he told these facts to McVittie at the time of the conference in the back room "after they all got there."

Evidence was introduced by the defendant which differed substantially from the plaintiff's testimony.

The defendant's assistant manager, St. George, "swore out" a complaint against the plaintiff in a District Court charging him with larceny and he was found guilty. On an appeal to the Superior Court the plaintiff was acquitted. It appears that those testifying in the District Court were St. George, Simeone, and Shea (all employees of the defendant), Monte (manager of the First National store across the street), and Officer Healey. These same witnesses testified at the trial in the Superior Court, as did also McVittie and Gorse.

The judge did not err in entering a verdict for the defendant under leave reserved.

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The burden was on the plaintiff to show as an essential part of his case, and by affirmative proof, that the charge was instituted without probable cause. Cloon v. Gerry, 13 Gray 201, 202. Keefe v. Johnson, 304 Mass. 572, 577. Higgins v. Pratt, 316 Mass. 700, 709. Since the decision in Desmond v. Fawcett, 226 Mass. 100, the law of this Commonwealth has been that a conviction of the accused by a tribunal to which the complaint was made, although reversed on appeal, conclusively establishes the existence of probable cause, unless the conviction "was obtained solely by false testimony of the defendant [charged with malicious prosecution] or is `impeached on the ground of fraud, conspiracy or subornation in its procurement.'" Dunn v. E. E. Gray Co. 254 Mass. 202, 203-204. To the same effect are Cloon v. Gerry, 13 Gray 201, 202, 203, Wingersky v. E. E. Gray Co. 254 Mass. 198, 201, and Carere v. F. W. Woolworth Co. 259 Mass. 238, 240. See Restatement: Torts, Section 667; Prosser on Torts, Section 96.

The evidence in the case at bar falls far short of the proof necessary to overcome the effect of the conviction in the District Court. There is nothing in the record which would warrant a finding that the plaintiff's conviction rested wholly, or indeed even partially, on false testimony of the defendant's employees, or that they procured false testimony to be given by others. Other than the fact that St. George testified in the District Court that he saw the plaintiff put a pound of sugar in his inside pocket (which is not disputed), none of the evidence in that court is before us. Considerable reliance is placed by the plaintiff on the fact that the defendant's employee Gorse did not testify in the District Court. But there is nothing to show that he was prevented from testifying by any act of the defendant. For aught that appears Gorse was available and could have been called by the plaintiff. Furthermore, if we assume that his testimony would have been the same in the District Court as it was in the trial of the present action, it would have had little or no bearing on the crucial issue of the case. As noted above, Gorse's testimony corroborated the plaintiff's

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story that he obtained the bag of sugar earlier in the morning, but it sheds no light on the all important question of whether the plaintiff paid for it.

Exceptions overruled.