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44 R.I. 123

116 A 205

Atkinson v. Birmingham

Supreme Court of Rhode Island

Decided March 10, 1922

Supreme Court of Rhode Island · decided 1922-03-10

<p>'(1) Malicious Prosecution.</p> <p>Jn an action for malicious prosecution, a plaintiff must establish by a preponderance of the evidence that defendant caused or assisted in causing the criminal prosecution to be instituted against him; therefore in a joint action, a verdict was properly directed for a defendant who simply reported truthfully facts to the police authorities and a defendant police officer who reported by direction of his superior officer the result of his interviews with plaintiff and other witnesses.</p> <p> ■(2) Malicious Prosecution. </p> <p>'To warrant recovery in an action for malicious prosecution plaintiff must establish by a preponderance of the evidence that in prosecuting him, defendant was acting without probable cause and also with malice toward him, and while the question of malice is ordinarily for the determination of the jury, it should not be submitted to them, in the absence of facts which would warrant a finding of malice.</p> <p>{S) Larceny. Lost Property.</p> <p>'To render a finder of lost property guilty of larceny the finder must appropriate the same to his own use at the time of finding, when at that time he knows who the owner is, or has the immediate means of ascertaining that fact. If for the first time the finder learns the identity of the owner subsequent to the finding and then denies the finding, or refuses to deliver the' property to the owner, such finder may be civilly hable for conversion, but. is not guilty of larceny.</p> <p> (4) Malicious Prosecution. Probable Cause. Malice. </p> <p>While malice may be inferred from want of probable cause, this inference-cannot be permitted, when the evidence showing a lack of probable cause-also shows the absence of both ill-will and oppression.</p> <p>Stearns and Sweeney, JJ., dissenting.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1922-03-10

How this case has been cited

Cited by 24 later decisions — most recently September 2009

3 federal appellate · 17 state decisions

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Stearns, J.,

¶1 dissenting. It is agreed that there was no probable cause for the criminal proceeding. The trial justice directed a verdict for the defendants on the ground that there was probable cause. This action was erroneous. The trial justice did not rule on the question of malice which was not material if there was probable cause. The plaintiff having established want of probable cause is entitled to recover in her action of malicious prosecution upon proof of either actual malice or malice implied in law, or, as it is sometimes called, constructive malice.

¶2 Plaintiff is a married woman of good reputation who has lived in Providence for a number of years. The defendant *131 Costigan, who is a police captain in the city of Providence, knew all of the facts of the case, before he began the criminal proceeding. No crime had been committed and the plaintiff asserted her innocence. Captain Costigan then threatened plaintiff with a criminal prosecution unless she paid to the defendant Birmingham the seven dollars which the' latter claimed she had lost. Upon plaintiff’s refusal to do as directed, the criminal proceeding was begun.

Charles B. Easton, for plaintiff. Washington B. Prescott, for defendant Birmingham. Elmer S. Chace, City Solicitor, for defendants Costigan and Hindmarsh. Henry C. Cram, Oscar L. Heltzen, Ellis L. Yatman, Assistant City Solicitors, of counsel.

¶3 Without any further consideration of the testimony, I think this action of the officer is a sufficient basis to warrant a jury in finding the existence of malice. It was an attempt to coerce plaintiff and a threat to use the machinery of the criminal law by a public officer to enforce the collection of a civil and individual claim. It may be that a jury, in view of the circumstances, might refuse to compel defendant Costigan to pay damages to plaintiff; but plaintiff, in my judgment, has the right to submit her case to a jury. The question on the direction of a verdict is not one in regard to the weight of the evidence of malice but rather, is there any evidence of malice; if there is, it,is a question for the jury in the first instance, and is not a question of law.

¶4 The case against the defendant Costigan should be submitted to a jury. Plaintiff does not urge the case against the other defendants very strongly and with reason as there is but little evidence against them.

¶5 Plaintiff’s exception to the action of the trial justice in directing a verdict for defendant Costigan should be sustained and the case should be remitted to the Superior Court for a new trial as to him. ■

¶6 I am authorized to state that Mr. Justice Sweeney concurs in this opinion.

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