RICHARD SEELIG vs. HARVARD COOPERATIVE SOCIETY.

SPIEGEL, J. The declaration in this action of tort contained three counts, one for malicious prosecution, another for slander, and the third for libel. The count for libel was waived. The jury returned a verdict for the plaintiff in the amount of $15,000 on the count for slander and a verdict for the plaintiff in the amount of $18,000 on the count for malicious prosecution. [Note 1] The case is here on the defendant's exceptions to the exclusion of certain evidence, to the admission of certain evidence, to the denial of a motion for a directed verdict on each count, to the denial of certain requested instructions, to the giving of an additional instruction to the jury after they had retired to deliberate, and to the denial of its motion for a new trial on the count for slander.

We state the evidence most favorable to the plaintiff. The defendant operates a retail store in Cambridge, Massachusetts, for the sale of various articles of merchandise. In April, 1963, it hired the plaintiff to manage its camera department. While the plaintiff was an employee of the defendant, it was the defendant's policy to allow employees in the camera department to take camera equipment from the store in order to become familiar with the operation of the equipment. Whenever an employee did so, a record on a 3 x 5 card was required to be made and the card placed in a file. When the equipment was returned the card was destroyed. On May 16, 1964, the defendant's assistant general manager discharged the plaintiff.

One Leo Davenport, a police officer of the city of Cambridge, on his "days off" was employed by the defendant as a "store detective." On July 3, 1964, the assistant general manager spoke to Davenport. As a result of this conversation, Davenport conferred with the buyer for the camera department. On July 7, 1964, after visiting the defendant's

Page 535

store, Davenport and another member of the Cambridge police department talked with one Grime, a customer of the defendant's store, at Grime's place of employment. Davenport asked Grime how long he had known the plaintiff, if he "knew . . . [the plaintiff] had been taken, as far as charges were concerned, for some property which had been taken," if he knew "anything about a camera, a strobe light, and a light meter" and if he had "ever . . . carried out of the store packages containing things which . . . [he] did not know was inside, given to . . . [him] by . . . [the plaintiff]." Davenport told Grime that "an article had been charged to . . . [Grime's account at the defendant's store]." Grime and the two officers went to Grime's residence where Grime gave the officers certain photographic equipment. They then went to the police station where Grime made a written statement, the pertinent parts of which are set forth in the margin. [Note 2]

Davenport returned to the defendant's store and talked with the buyer for the camera department, the assistant general manager and another employee of the camera department. He then obtained a search warrant for the plaintiff's residence in North Reading. Subsequently Davenport, another officer from Cambridge and two members of the North Reading police department searched the plaintiff's residence. They found photographic equipment which the plaintiff admitted was the property of the defendant. The plaintiff and the equipment were then taken to the Cambridge police station. The assistant general manager, the buyer and the other employee of the camera department were at the station.

Page 536

The plaintiff was detained overnight. The following morning, after the plaintiff signed a written statement, Davenport signed criminal complaints charging the plaintiff with larceny. On September 15, 1964, "a trial was held" and the plaintiff was found not guilty. At no time did any person connected with the defendant ask the plaintiff to return the photographic equipment. At no time did any of the defendant's employees tell Davenport not to initiate proceedings against the plaintiff.

1. The defendant contends that its motion for a directed verdict on the count for malicious prosecution should have been granted. It argues that Davenport was acting as a police officer when he initiated the criminal proceedings against the plaintiff and that the defendant did not ratify his actions. It also argues that because of certain "uncontroverted evidence" the question whether the defendant had probable cause was one of law which should have been resolved in its favor.

The general rule is that "where the [police] officer is acting in the performance of his public duties . . . or where the defendant does no more than narrate the material facts to the officer and leave him to decide what he will do . . . the defendant is not liable for the action of the officer." Kidder v. Whitney, 336 Mass. 307, 308-309. The defendant is not responsible where the officer acts "entirely upon his own judgment and responsibility as a public officer." Burnham v. Collateral Loan Co. 179 Mass. 268, 274. But where by any means it is shown that the officer is not expected to exercise his "judgment and responsibility as a public officer" the defendant is responsible for the officer's subsequent acts. Mason v. Jacot, 235 Mass. 521.

There was no evidence in the instant case that Davenport was in the employ of the defendant on the days that he conducted his investigation and initiated the criminal proceedings against the plaintiff. There was evidence, however, that Davenport was employed by the defendant one day a week on a regular basis and had been so employed for a number of years. Throughout his investigation Davenport

Page 537

had frequent conversations with the defendant's assistant general manager. The assistant general manager, having initiated the train of events which eventually resulted in the criminal complaints against the plaintiff, never told Davenport not to initiate the proceedings. While the jury could have found on these facts that Davenport acted solely as a police officer, it could also have concluded that the defendant was responsible for Davenport's actions. See Hirst v. Fitchburg & Leominster St. Ry. 196 Mass. 353.

Regarding the question of probable cause, the jury was not required to believe the defendant's "uncontroverted evidence." See Lenn v. Riche 331 Mass. 104, 111. There was evidence that the assistant general manager and Davenport knew that the plaintiff had taken the photographic equipment pursuant to the defendant's policy which permitted him to do so. There was also evidence that the defendant never asked the plaintiff to return the equipment. The jury could have inferred from this evidence that the assistant general manager and Davenport did not have reason to believe that the plaintiff had formed an intention not to return it. The jury could also have found that the assistant general manager and Davenport did not believe the statements made by Grime. The question of probable cause was properly before the jury. Having determined that the assistant general manager and Davenport acted without probable cause, the jury could have inferred that they acted with malice. Pihl v. Morris, 319 Mass. 577, 580. There was no error in the judge's denial of the defendant's motion for a directed verdict on the count for malicious prosecution.

2. The plaintiff introduced evidence of the following allegedly slanderous statements: "Davenport . . . signed a search warrant . . . and two larceny complaints . . . knowing such are public records and that they would be published in the local papers . . .. They were repeated with audiences present at three different hearings and at the trial of this case . . .. They were repeated in the presence of . . . [a member of the Cambridge police department,

Page 538

two individuals, and members of the North Reading police department] in the presence of the plaintiff's wife and his three children . . . to one Grime . . . and several employees of the defendant at the Cambridge Police Department."

Any defamatory statements contained in the search warrant and the criminal complaints were necessarily written and the plaintiff, having waived the count for libel, cannot rely on them to support the jury's finding on the count for slander. The statements made in the course of the judicial proceedings were pertinent and are, therefore, absolutely privileged. Laing v. Mitten, 185 Mass. 233, 235. Mezullo v. Maletz, 331 Mass. 233, 236. The remaining statements alleged to be slanderous were statements made by Davenport during the course of his investigation.

The defendant again contends that it is not responsible for Davenport's actions during his investigation. See supra. The defendant also argues that the statements were conditionally privileged and there was no evidence that they were uttered with malice. We do not agree. Although the statements were conditionally privileged, "the plaintiff has the right, notwithstanding the privileged character of the communication, to go to the jury, if there be evidence tending to show actual malice." Dale v. Harris, 109 Mass. 193, 196. Where the jury finds that the defendant did not have probable cause when it caused the statements to be uttered, the jury may infer that they were uttered with malice. Retailers Commercial Agency, Inc., petitioner, 342 Mass. 515, 520-521. There was no error in the denial of the defendant's motion for a directed verdict on the count for slander.

3. The defendant excepted to the exclusion from evidence of the typewritten statement made by the plaintiff on July 8, 1964, before the criminal complaints were signed. Although the plaintiff does not argue the question in his brief he argued at the trial that the statement was inadmissible because it was obtained in violation of his constitutional rights as set forth by the Supreme Court of the United States in the case of Escobedo v. Illinois, 378 U.S. 478.

Page 539

We summarize the evidence with regard to the statement. [Note 3] In the late afternoon or early evening of July 7, 1964, the plaintiff was taken to the Cambridge police station. Upon arrival he was given something to eat. The photographic equipment taken from his home was placed on a table and he separated it into two "piles," one containing that which was the property of the defendant and the other containing that which was his. He was informed that he was under arrest, was permitted to make a telephone call to his father, and was placed in a cell for the night. There was no evidence that he was subjected to any interrogation on July 7, 1964.

The following morning he was interviewed by the officer who had accompanied Davenport the day before. He was informed of the nature and seriousness of the charges against him and of the possible penalty should he be convicted. He was informed that he would be taken to court that day and that an attorney would be there to represent him. The plaintiff then typed a statement, the pertinent parts of which are set forth in the margin. [Note 4] The plaintiff was not threatened or promised anything. There was no evidence of physical abuse or prolonged interrogation on July 8, 1964. Although the plaintiff claimed that he had only typed what the officer told him to type, the officer testified that he only instructed the plaintiff as to what matters should be covered by the statement. The plaintiff read the statement and then signed it.

Page 540

We do not think that the statement was involuntarily made or coerced. It is not "inherently untrustworthy." It corroborated the statement made by Grime and the testimony of the defendant's employees with regard to the question of probable cause. It also tended to prove the truth of the allegedly slanderous statements. That the statement might be inadmissible in a criminal proceeding against the plaintiff because it might have been obtained in violation of the rules established by the Supreme Court of the United States in the cases of Escobedo v. Illinois, 378 U.S. 478, and Miranda v. Arizona, 384 U.S. 436, is not relevant. The exclusionary rules announced in those cases are applicable only to criminal proceedings. Escobedo v. Illinois, supra, 491. Miranda v. Arizona, supra, 444. We do not intend to extend these rules to a civil proceeding between private parties. As the statement was relevant to the questions whether the assistant general manager and Davenport had probable cause and whether the allegedly slanderous statements were true, its exclusion was prejudicial error.

4. As the defendant is entitled to a new trial we are considering only such of the remaining exceptions as are likely to occur at another trial.

The judge allowed de bene testimony by the plaintiff to the effect that following his arrest he was called to his children's school and informed by the principal that his children "were upset by talk that was going around." The defendant argues that the testimony was a "mixture of hearsay and opinion evidence" and should have been struck from the record on the defendant's motion. We do not agree. While the testimony was not admissible to prove the truth of what the plaintiff was told by the principal, it was admissible to prove that it had been said. See Commonwealth v. Monahan, 349 Mass. 139, 167-168. That the plaintiff had reason to be concerned about how his arrest had affected the lives of his children was relevant on the question of damages.

The judge did not allow the defendant to establish the

Page 541

reason for the plaintiff's discharge or the plaintiff's prior employment history. The plaintiff had introduced evidence to the effect that his discharge was the result of ill feelings between himself and the defendant's assistant general manager and that following the plaintiff's arrest he had difficulty finding employment. We think that the defendant was entitled to attempt to prove that the plaintiff's discharge was not the result of malice and that his inability to find work was not the result of his having been arrested. Evidence that the plaintiff was discharged because he was not properly performing his duties and that he had had employment difficulties in the recent past would counter the plaintiff's allegation of malice and might result in a mitigation of damages.

The judge also excluded from evidence a letter received by the defendant regarding the plaintiff's poor financial condition. The defendant argues that it was admissible "to confirm evidence of his dishonesty" and that the existence of a reply by the defendant to the letter proves that it had knowledge of the letter when it caused the criminal proceedings to be instituted against the plaintiff. There was no evidence that any of the defendant's employees who were involved in the investigation and prosecution or Davenport had knowledge of the letter. Probable cause is a state of mind. A corporation has no mind. While it can be responsible for the tortious acts that require the existence or absence of a certain state of mind if those acts are committed by an employee, the requisite state of mind must necessarily be that of the employee. In effect, then, the defendant argues that because a corporation is presumed to have knowledge of information communicated to one of its employees, all the employees are presumed to have knowledge of that information. We do not agree. Probable cause is "such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person arrested is guilty." Bacon v. Towne, 4 Cush. 217, 238-239. It is the person's "honest and reasonable

Page 542

belief, not the actual state of things," which governs. Higgins v. Pratt, 316 Mass. 700, 709. The application of a doctrine of "constructive" knowledge would in effect permit the corporate defendant to act without probable cause and justify its action by the "actual state of things." It was not error to exclude the letter.

The judge also excluded from evidence a copy of a sales order for one of the items found at the plaintiff's residence. The sales order has on it the notation: "Sold order, William Grime, Coop. #74791." The defendant argues that the sales slip corroborates the written statement given by Grime and is therefore "evidence of a criminal intent at the time of the taking." It argues that Davenport had "this information . . . prior to the prosecution." There was no evidence that either Davenport or the assistant general manager knew of the sales slip. The fact that Davenport had the information contained in the sales slip from another source does not render the sales slip admissible. In order to be admissible the person who is required to have had probable cause must have had actual knowledge of the sales slip itself. As the defendant did not offer the sales slip to establish the truth of the allegedly slanderous statement, it was not error for the judge to exclude it.

The judge also excluded from evidence the assistant general manager's account of a conversation he had with a sales clerk which ultimately resulted in the initiation of the criminal proceedings against the plaintiff. The defendant argues that the evidence was admissible to show that there was "an understandable and logical reason for the initiation of the investigation." Hearsay evidence is admissible to show the existence of probable cause. Although there was no evidence that Davenport had knowledge of the conversation, the testimony was admissible to show that the assistant general manager had probable cause when Davenport initiated the criminal proceedings against the plaintiff.

Finally, the judge refused to give the jury two additional instructions requested by the defendant. The judge instructed

Page 543

the jury that "larceny is the stealing of the personal property of another. It may also consist of obtaining another's property with intent to defraud by false pretenses." General Laws, c. 266, Section 30, as amended through St. 1945, c. 282, Section 2, provides in pertinent part that "whoever unlawfully, and with intent to steal or embezzle, converts . . . the property of another . . . whether such property is or is not in his possession at the time of such conversion . . . shall be guilty of larceny." "Demand and refusal are never necessary, except as furnishing evidence of an unlawful taking or detention against the rights of the true owner . . .. When the circumstances, without these, are sufficient to prove such taking or detention, they are superfluous." Edmunds v. Hill, 133 Mass. 445, 446-447. Lawyers Mortgage Inv. Corp. of Boston v. Paramount Laundries Inc. 287 Mass. 357, 361. The defendant was entitled to an instruction to the effect that even if the plaintiff originally had the defendant's permission to have possession of the photographic equipment, if he later formed an intent to keep it he was guilty of larceny. The defendant was also entitled to an instruction on conditional privilege on the count for slander. See Brow v. Hathaway, 13 Allen 239, 242; Dale v. Harris, 109 Mass. 193, 196.

Exceptions sustained.