Morrow v. Wheeler & Wilson Manufacturing Co.

43 N.E. 105, 165 Mass. 349, 1896 Mass. LEXIS 262

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1896
• Status: Published

Opinion

Barker, J.

The exceptions to the ruling that the first count, which was for libel, and the second count, which was for assault and false imprisonment, could not be maintained, must be overruled.

Upon the evidence, the only publication of defamatory words was the making of the complaint to the police court; the only assaults and imprisonments were the arrest and detention of the plaintiff under due process of law. A complaint made to a court of competent jurisdiction in the regular course of justice, and containing no impertinent allegations, is not deemed an actionable libel. Kidder v. Parhhurst, 3 Allen, 393. Nor is the complainant or his principal liable for the arrest and detention of the person complained of, save in the case of a malicious prosecution ; and in that case damages for the arrest and detentian are recoverable only as elements of the general damages, and not independently. Barker v. Stetson, 7 Gray, 53. Coupal v. Ward, 106 Mass. 289. Mullen v. Brown, 138 Mass. 114. Langford v. Boston & Albany Railroad, 144 Mass. 431.

We need not inquire whether the plaintiff should have been made to elect as to which defendant she would proceed against upon the count for malicious prosecution. See Mulchey v. Methodist Religious Society, 125 Mass. 487. Her conviction in the police court conclusively established the fact that the prosecution was instituted with probable cause. Dennehey v. Woodsum, 100 Mass. 195, 197. This defeated her action, and she was harmed neither by her discontinuance as to one defendant, nor by the ordering of the verdict against her in favor of the other defendant.

Exceptions overruled.