Summary
defining probable cause in malicious prosecution as "a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged," quoting Ash v. Marlow, 20 Ohio 119, 129
Summary of this case from State v. CarnesOpinion
No. 35964
Decided January 13, 1960.
Malicious prosecution — Essential elements — Lack of probable cause from which malice inferred — Not presented, when.
1. The essential elements of a malicious prosecution are (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the defendant. (Paragraph two of the syllabus of Davis v. Tunison, 168 Ohio St. 471, modified.)
2. Where the proof in a malicious prosecution action shows only that the defendant was one of four persons who identified the plaintiff in a police lineup, and that the affidavit as a result of which the plaintiff was arrested was signed by a police officer, and where there is no allegation or proof of a conspiracy between such identifying witnesses to cause the arrest of plaintiff, there is no lack of probable cause from which the element of malice may be inferred.
APPEAL from the Court of Appeals for Cuyahoga County.
The parties will be designated herein as they were in the trial court.
Plaintiff instituted this action in the Common Pleas Court of Cuyahoga County by filing a petition which, omitting the formal parts thereof, reads in part as follows:
"1. That said defendants are and at all times herein mentioned were the owners of a tavern located at 2128 Woodland Avenue, Cleveland, Ohio, known as Jimmy Joe's Lounge;
"2. That on or about the 27th day of March, 1954, said defendants falsely accused the plaintiff of committing an armed robbery on the premises hereinbefore described and taking cash or checks in the sum of seven thousand seven hundred thirty-nine dollars ($7,739) which was the property of said defendants, and caused plaintiff to be imprisoned in the county jail of Cuyahoga County, Ohio, and caused him to be deprived of his liberty from the 27th day of March, 1954, to the 6th day of June, 1954;
"3. That said accusation was false and said arrest and imprisonment was caused by said false accusation and that in causing the arrest and imprisonment of the plaintiff, said defendants acted wantonly, without probable cause and in reckless disregard of the rights of the plaintiff — who was released from such imprisonment on the 6th day of June, 1954, by the Grand Jury of Cuyahoga County, which found no probable cause for such arrest and imprisonment;
"4. That the plaintiff, at the time of and before such arrest, was known by the defendants to be of good reputation and as a result of such unfounded arrest and imprisonment and said false charge, plaintiff suffered humiliation, indignities, mental anguish and injury to his reputation."
Plaintiff's petition continues with allegations of injury and a prayer for damages therefor. To this petition were filed general denials.
The case proceeded to trial, and, at the close of the plaintiff's evidence, counsel for defendants made three motions, as follows:
1. To require the plaintiff to elect which defendant he would proceed against.
2. For the removal of the allegations of false arrest and false imprisonment from the consideration of the jury.
3. For a directed verdict in favor of the defendants or either of them depending on the court's ruling on the motion to elect.
Upon the making of these motions, counsel for plaintiff voluntarily had Nunziata Barbera dismissed and elected to proceed against James Barbera.
The court ruled on the other two motions as follows:
"As to the defendant James Barbera the court feels that it will grant the motion with reference to false imprisonment action and will overrule the motion for an instructed verdict on behalf of the defendant and we will proceed on the malicious prosecution." (Emphasis added.)
The motion for directed verdict was renewed by the defendant at the close of all the evidence and was overruled.
The jury returned a verdict for the plaintiff in the sum of $6,000 for compensatory damages and $2,000 for exemplary damages.
Defendant's motions for judgment notwithstanding the verdict and for new trial were overruled.
The Court of Appeals for Cuyahoga County affirmed the judgment of the Court of Common Pleas, and the cause is before this court upon the allowance of a motion to certify the record.
Mr. Clarence K. Snyder and Mr. John P. Butler, for appellee.
Mr. John M. Drain, for appellant.
Having taken from any possible consideration by the jury the allegations of false imprisonment, the trial court, on motion to direct a verdict, was faced first with the question of whether the petition states a cause of action for malicious prosecution. See Morgenstern v. Austin, ante, 113.
In 22 American Jurisprudence, 353, False Imprisonment, Sections 2 and 3, it is said:
"False imprisonment has been said to be the unlawful restraint by one person of the physical liberty of another. In this phrase, the word `false' seems to be exactly synonymous with `unlawful.' False imprisonment has been defined by statute as `the unlawful violation of the personal liberty of another' * * *.
"As is seen from the definitions, false arrest and false imprisonment as causes of action are indistinguishable. The only distinction lies in the manner in which they arise. In a false arrest, false imprisonment exists, but the detention is by reason of an asserted legal authority to enforce the processes of the law; in a false imprisonment, the detention is purely a matter between private persons for a private end, and there is no intention of bringing the person detained before a court, or of otherwise securing the administration of the law.
"An action for false imprisonment is closely akin to the actions for malicious prosecution, abuse of process, and vexatious suit. * * * Both courts and text writers have sometimes confused these causes of action * * *. In false imprisonment, the essence of the tort consists in depriving the plaintiff of his liberty without lawful justification; and the good intention of the defendant does not excuse, nor does his evil intention create, the tort. * * * Although malicious prosecution and false imprisonment are frequently confused, the distinction between them is fundamental. In the case of malicious prosecution, as in abuse of process, valid process justifies restraint or imprisonment, and the gist of the cause of action is malice or evil intent. * * * A suit for false arrest or false imprisonment is the proper action where the aggrieved party is arrested without legal process, or under a void process; but where the process on which the arrest is made is regular on its face, but is sued out maliciously and without probable cause, the remedy is an action for malicious prosecution." (Emphasis added.)
This distinction was recognized by this court in Brinkman v. Drolesbaugh, 97 Ohio St. 171, 119 N.E. 451, L.R.A. 1918F, 1132, where it is said, in the second paragraph of the syllabus:
"False imprisonment per se is not concerned with good or bad faith, malicious motive or want of probable cause on the part of the prosecuting witness, or the officer causing the imprisonment. If the imprisonment was lawful, it is not the less lawful that any or all of the foregoing elements existed. These elements relate to an action of malicious prosecution, but are not essential to an action in false imprisonment."
The essential elements of fact in an action for malicious prosecution and the necessity for alleging those elements were established early in Ohio in the case of Anderson v. Buchanan, Wright, 725, in which it was held:
"To sustain an action on the case for malicious prosecution, malice and the want of probable cause must concur, and the prosecution be at an end. This must be alleged, and is so in this case."
Those requirements have been since adhered to by this court. Woodruff v. Paschen, 105 Ohio St. 396, 137 N.E. 867.
The petition herein unquestionably alleges both the termination of the prosecution favorable to the plaintiff and the lack of probable cause. Is the third element, that of "malice," properly alleged? If the words, "acted wantonly * * * and in reckless disregard of the rights of the plaintiff," can be interpreted as an allegation of "malice," that question must be answered in the affirmative.
The majority of the members of this court are of the opinion that the conduct of a party may be either "wanton" or "reckless" and still not have been actuated by malice or ill will. And in the concept in which "wanton" is most frequently encountered — in the field of negligence and more particularly in regard to the guest statute — to constitute "wanton negligence" (a term no longer sanctioned in Ohio but succeeded by the term, "wanton misconduct," in guest statute cases) it is not necessary that there be ill will toward the person injured. Higbee Co. v. Jackson, 101 Ohio St. 75, 128 N.E. 61, 14 A.L.R., 131; Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, 119 A.L.R., 646.
And were it not for certain wording in an illustrative phrase used in both the syllabus and opinion of Davis v. Tunison, 168 Ohio St. 471, 155 N.E.2d 904, we would have no difficulty in holding that an allegation of "wantonness" does not constitute the requisite allegation of malice in an action for malicious prosecution.
The primary point for decision in Davis v. Tunison, supra, was whether the question of punitive damages could be submitted to a jury in the absence of proof of actual malice. This court held it could not. But it also held, and properly so, that actual malice may be inferred from conduct and surrounding circumstances, provided there is evidence to reasonably justify the inference. This could have been decided just as effectively if the second paragraph of the syllabus had read:
"Actual malice may be inferred from conduct and surrounding circumstances, such as a malicious prosecution, but there must be evidence from which such malice can reasonably be inferred to justify punitive in addition to compensatory damages."
To include, by way of illustration of such "conduct and surrounding circumstances," a malicious prosecution of one "wantonly, recklessly, and without justification" is to beg the question, because, as we have pointed out, the elements of malicious prosecution have long been established, and, in our opinion, more than an allegation of wantonness is required.
Since, however, the petition herein is being examined as if on demurrer, the allegations thereof must be liberally construed in favor of the plaintiff, and the plaintiff must be given the benefit of whatever can, by reasonable intendment, be implied from those allegations. Glass v. McCullough Transfer Co., 159 Ohio St. 505, 112 N.E.2d 823.
Since malice may be inferred from proof of lack of probable cause ( Melanowski v. Judy, 102 Ohio St. 153, 131 N.E. 360), we are constrained to hold that plaintiff's petition is sufficient to warrant proceeding to trial, although in doing so we do not intend to place a stamp of approval on this method of pleading a cause of action for malicious prosecution. (It is interesting to note that the petition used herein appears to closely follow form 4605 on page 505, 6 Ohio Procedural Forms [1948 Replacement]. According to the editors of Ohio Procedural Forms, this form was designed for use in cases of false imprisonment and obviously not for use in actions for malicious prosecution. Form 4605 is entitled "Petition for False Imprisonment — Punitive Damages.")
We are then faced with the question of whether this record reveals any evidence of lack of probable cause from which the essential element of malice may be inferred.
An almost classic definition of probable cause, as it pertains to a malicious prosecution action, was adopted by this court, as follows, in Ash v. Marlow, 20 Ohio, 119:
"What, then, is the meaning of the term `probable cause'? We answer, a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged."
The following excerpts from the testimony of Henry Ronski, a detective in the Cleveland Police Department, who was called as a witness by the plaintiff, are pertinent to the question of probable cause.
"Q. Who were those people who came forward for the purpose of co-operating with the police? A. Those three disinterested witnesses that were at the scene of the crime at the time."
After the court sustained an objection to the use of the word, "disinterested," the question was rephrased, and the following appears in the record:
"Q. I will ask you what three witnesses you had in mind as you described them from the stand? A. Eva Baker, Mary Lipscomb and Sarah Rucker.
"Q. Now, in addition to those three persons was there anybody else who participated in the investigation? A. Indirectly; yes.
"Q. Now, directly, was it James Barbera who had come forward with his statement to assist you in your investigation? A. Yes; he did.
"Q. And he gave you that — he gave a statement, didn't he? A. Yes; he did.
"Q. That has been admitted here into evidence, and the other three witnesses as described in this summary gave statements? A. Yes, sir; that's right.
"Q. So that the statements of those three persons and the statement of James Barbera were obtained. Did James Barbera do anything else more in your investigation of this matter of Henry Rogers than any one of the other three witnesses? A. Did he do more than any of the other witnesses?
"Q. You indicated here, I think, giving you a statement? A. Other than he was the victim of the robbery.
"Q. Other than he was the victim he did nothing more in your investigation than any of the other witnesses had done? A. No, sir.
"* * *
"Q. But to the extent you are familiar with it, to the best of your knowledge, the first knowledge you have of Henry Rogers being in a lineup was on March 28, or Sunday? A. Sunday; that's right.
"Q. At that time, if you remember, who viewed Henry Rogers in the lineup? A. James Barbera and the three witnesses I mentioned.
"Q. At that time did they without question pick him out as the man who had been one of the two men committing the robbery? A. Yes; they all identified him.
"Q. Their identification was positive? A. They said their identification was positive."
The record also clearly indicates that the police officer, Detective Ronski, signed the affidavit as a result of which the plaintiff herein was arrested. Detective Ronski's testimony on this matter is as follows:
"Q. So that your signing of the affidavit in this case represents an unusual practice? A. An unusual practice.
"Q. When you signed this affidavit, Detective Ronski — strike that question, please. Why, then, in this case, did you sign the affidavit rather than one of the complaining witnesses? A. Well, chiefly for the simple reason that due to the fact that we had, at that time, sufficient evidence I deemed it all right for myself to sign the affidavit.
"* * *
"Q. So the matter of the signing of the affidavit, Detective Ronski, was a matter that was entirely within your control, a matter whether you could sign or not sign? A. Yes, sir.
"Q. Did James Barbera tell you to sign the affidavit? A. No; he did not."
Clearly, the defendant here, the victim of the alleged robbery, did nothing more than three other witnesses. All gave statements concerning the robbery and all identified the plaintiff in a police lineup. So satisfied were the police with the identification that one of the police officers followed the "unusual" practice of signing the affidavit himself.
Although some doubt might be expressed, in view of these facts, whether the defendant herein initiated any prosecution, malicious or otherwise, we have no doubt that the concurring identification by three other witnesses sufficiently insulated the defendant from the resultant prosecution as to enable us to say as a matter of law that there was no lack of probable cause for his action.
If the plaintiff herein had in mind a conspiracy between the defendant and the other identifying witnesses to cause the arrest of plaintiff, it was certainly incumbent upon him to allege and prove it. Neither the petition nor the record would sustain such a contention.
It follows that the Court of Common Pleas erred in refusing to sustain the defendant's motion for a directed verdict, that the judgment of the Court of Appeals should be reversed, and that final judgment should be entered for the defendant. The cause is hereby remanded to the Court of Common Pleas with instructions to enter final judgment for the defendant.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, HERBERT and PECK, JJ., concur.