Marsh v. Commercial and Savings Bank of Winchester, Va.

Decision Date27 March 1967
Docket NumberCiv. A. No. 66-C-88-R.
Citation265 F. Supp. 614
PartiesJohn Edward MARSH, Plaintiff, v. The COMMERCIAL AND SAVINGS BANK OF WINCHESTER, VIRGINIA, Roxy Hockman, and Caroline Hickerson, Defendants.
CourtU.S. District Court — Western District of Virginia

COPYRIGHT MATERIAL OMITTED

Alexander N. Apostolou and Harvey S. Lutins, Roanoke, Va., for plaintiff.

Henry Whiting, Kuykendall & Whiting, Winchester, Va., for defendants.

OPINION AND JUDGMENT

DALTON, Chief Judge.

This case involves a controversy between a plaintiff who is a citizen and resident of the State of Nevada and three defendants, a bank and two of its employees. The bank is a Virginia corporation located in Winchester, Virginia, which is in the Western District of Virginia and the two employees are citizens and residents of Virginia. The amount sued for is one-million dollars ($1,000,000). While no specific amount of special damages is alleged, it is unlikely that the amount of special damages is as much as $10,000. Assuming liability could be established, the amount of general damages, to be added on to any special damages, would be a matter to be determined at trial. Although the result of such a determination is only a matter for speculation now, we will assume that the claim is made in good faith and would, in total, exceed $10,000. Thus this Court has jurisdiction under 28 U.S.C. § 1332(a).

In general, the plaintiff alleges that the defendants are liable for defamation and malicious prosecution of the plaintiff. The complaint grew out of a bank robbery which occurred on September 22, 1965, plaintiff having been identified as the bank robber by the two bank employees. Subsequently he was indicted, tried and found guilty and on April 15, 1966, sentenced to fifteen years in prison. Then after plaintiff had begun serving the sentence, the real bank robber, Charles Abbott Lauritzen, confessed to the crime. The plaintiff was immediately brought to Roanoke and a hearing was held on the basis of the newly discovered evidence. At this hearing the plaintiff was released as a free man on the basis of the testimony of the real bank robber and the two eyewitnesses who acknowledged that they had been mistaken and that the plaintiff was not the man who robbed their bank.

In order to be able to better understand the allegations of plaintiff, hereinafter set out, the basic facts of the case will be recited here.

On September 22, 1965, at approximately two or three minutes after 2:00 p. m. a white male knocked on the front door of the South Branch of the Commercial and Savings Bank of Winchester, Virginia. There were two employees inside, a teller and the branch manager, who were attending to the closing of the bank business for the day. Mrs. Hickerson, the teller, indicated by a nod of the head to the man that the bank was closed. He persisted and she told Mr. Hockman, the branch manager who was at the drive-in window, that someone was at the door. Mr. Hockman went to the glass door, unlocked it and opened it just about twelve inches and asked if he could help the man. When he said "Are you closed?" Mr. Hockman told him that he was and asked if he could be of any assistance. With that the man pushed his way into the bank. Hr. Hockman locked the door again and the robber pulled a gun from his pocket. Mrs. Hickerson sounded a burglar alarm which makes no sound in the bank but rings an alarm in the police station. The robber took a brown paper bag out of his pocket, handed it to Mr. Hockman and told him to "Put the money in the bag and don't say anything." Mrs. Hickerson took the money out of her drawer and laid it on the counter while Mr. Hockman put it in the bag. This continued until the bag was full. Then the robber told Mr. Hockman to get behind the counter and for both of them to lie on the floor. He asked what was in a back room which he saw. He was told that it was a rest room and utility room. Then he went to the front door, encountered some difficulty in getting it unlocked, finally succeeded and left. The robber was in the bank from about eight to twelve minutes all together.

The F.B.I. agents investigated that day and the next day the agents brought some files of pictures in for the two employees to examine. They did not recognize any of them. Several days later, Mr. Thomas of the F.B.I., brought in some eight or ten more pictures. The pictures were laid out on a desk and Mr. Thomas asked Mr. Hockman, out of the presence of Mrs. Hickerson, if there was anyone there that looked like the bank robber. He spent about a minute or two looking at the pictures and identified one picture as that of the robber. Mrs. Hickerson was not with him at any time he was identifying the pictures. Then Mrs. Hickerson was brought in and after she studied the pictures for about five minutes she identified the same picture that Mr. Hockman had. Neither party had, at this time, ever seen a picture of the man they identified as the robber.

About three months later, both Mr. Hockman and Mrs. Hickerson went to Roanoke at the request of the F.B.I. agents to view a line-up in the Roanoke City jail for the purpose of identifying the bank robber. At this time, Mrs. Hickerson went in first without Mr. Hockman, and spent several minutes viewing the five or six men in the lineup. She stated that the men were all about the same height and weight and were dressed the same. She identified the man who was second from the left as she looked at them from her position directly in front of them. Then without conferring with Mrs. Hickerson, Mr. Hockman came in and spent a period of about fifteen seconds looking at the lineup. He identified the same man that Mrs. Hickerson had identified. At this point both witnesses had seen pictures of John Edward Marsh in the newspapers which had been printed following their identification of Marsh's picture at the bank. They both testified, however, that having seen his picture in the paper had no influence on their identification of Marsh in the line-up. They picked him out because they thought he was the man whom they had seen rob the bank.

Another trip was made to Roanoke by both witnesses for the purpose of testifying to the grand jury. They did not see Marsh on this trip. Then their third trip was made for the purpose of testifying at the trial of John Edward Marsh.

As they affect the libel, slander and insulting words counts of plaintiff's allegations, the proceedings at the trial will not be discussed because the plaintiff concedes in his first brief that absolute privilege operated to allow the witnesses to speak freely about the identification of the robber at the trial. At page two of plaintiff's brief he says:

With reference to privilege, the case of Darnell v. Davis, 190 Va. 701, 58 S.E.2d 68 (1950) has no application to the instant case. In Darnell it was held that words written or spoken during the course of a judicial proceeding, when relevant and pertinent, were absolutely privileged. In the instant case, we are not faced with statements made during the course of a judicial proceeding, but rather statements made prior to and resulting in a judicial proceeding.

However, the trial will be discussed later in this opinion when the court concerns itself with the question of malicious prosecution and how the conviction at the trial affects the question of probable cause, one of the elements which must be lacking in order to make a case of malicious prosecution.

The plaintiff's bill of complaint is lengthy. Rather than set it out completely here, it will suffice to say that plaintiff alleges (1) that the defendant employees libeled and slandered the plaintiff by identifying his picture and later identifying him in person in the line-up as the man who had committed the felony of robbery; (2) that the defendants by their same actions have wronged the plaintiff under the terms of the Virginia insulting words statute; (3) that the defendants are liable in damages to the plaintiff for the above two counts as well as for malicious prosecution which they say grew out of the identification and their false and malicious testimony at the trial; (4) that the defendants breached a duty owed to plaintiff to act with reasonable care in identifications made in connection with the robbery; and (5) that as a direct and proximate result of all these misdeeds of defendants, plaintiff has been falsely imprisoned and has suffered other harmful consequences for which he says he is entitled to a money judgment.

Having thoroughly studied the allegations of the plaintiff, the answers of the defendants and the supporting briefs filed by each side along with the affidavits, answers to interrogatories and admissions filed pursuant to the motion for summary judgment, the court now addresses the aforesaid allegations and considers the defendants' motion for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure.

First, plaintiff contends that defendants are liable in damages to him for their actions which, he alleges, constitute malicious prosecution. As we said in Janney v. Arlan's Department Store, 247 F.Supp. 306 (D.C.1965), and as the plaintiff points out in his most recent brief when he cites that case, the elements of a cause of action for malicious prosecution are said to be as follows:

(1) institution of judicial proceedings by or at the instance of the defendant;

(2) the termination of such proceedings in plaintiff's favor;

(3) actual malice on the part of defendant in instituting the proceedings;

(4) a lack of probable cause for institution of the proceedings. Wiggs v. Farmer, 205 Va. 149, 135 S.E.2d 829 (1964); * * * 34 Am.Jur. Malicious Prosecution § 6 (1941).

Additionally, we will, as we did there, preface our remarks by noting

that actions for malicious prosecution are not favored and courts allow recovery only when the requirements for such have been fully complied with. Wiggs v. Farmer, supra. The
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