White v. Chicago, Burlington and Quincy Railroad

• Citation: 417 F.2d 941
• Decision Date: 07 November 1969
• Docket Number: No. 19499.,19499.
• Parties: Gerald P. WHITE, Appellee, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

417 F.2d 941 (1969)

Gerald P. WHITE, Appellee, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD, Appellant.

No. 19499.

United States Court of Appeals Eighth Circuit.

November 7, 1969.

Michael T. Levy, of Gaines, Spittler, Neely, Otis & Moore, Omaha, Neb., for appellant; Harry B. Otis, Omaha, Neb., on the brief.

Robert D. Mullin, of Boland, Mullin, Walsh & Cooney, Omaha, Neb., for appellee.

Before VAN OOSTERHOUT, Chief Judge, and LAY and HEANEY, Circuit Judges.

LAY, Circuit Judge.

Defendant railroad appeals from a jury verdict against it in the sum of $15,000 for malicious prosecution and $20,000 for slander. Defendant urges that the trial court erred in failing to direct a verdict on both counts; in the alternative, in failing to grant defendant's motion for new trial by reason of the alleged prejudicial comments of the trial judge and the excessive damages. We affirm.

Gerald P. White was employed by the defendant company as a truck driver. On March 25, 1966, he was reported by a Mrs. Nancy Wells as approaching her while her car and White's truck were stopped on the highway near Scottsbluff, Nebraska, with his clothing in a state of "disarray." The police immediately reported the incident to the railroad but took no action themselves.

On March 26, 1966, Everett Cole, the railroad investigator, had the sheriff summon Mrs. Wells to the court house to enable Cole to take her statement. At that time she said she noticed that the driver's slacks were open at the front and slipped off his hips. She said that he did not "expose himself." When he started toward her auto she immediately drove off. At that time the driver began checking his truck tires, still holding his slacks up with one hand.

After taking this statement, Cole took it to the county attorney and stated that based upon his "investigation," their employee, Gerald P. White, was the one involved in the incident described by Mrs. Wells in the statement. White, a trusted employee of thirteen years, was not questioned or interviewed by Cole.

The county attorney filed a criminal complaint against White for "indecent exposure."

On the morning of March 30, 1966, White, after another trip to Scottsbluff, was arrested. He was taken to the sheriff's office where they took his personal belongings, photographed him and fingerprinted him. White denied any involvement in the entire incident. He was then booked, jailed and released upon bond later that morning. On May 6, 1966, White was tried in the County Court of Scotts Bluff County. White was acquitted after the state rested its case.

I. The defendant relies upon the Nebraska common law rule that a person who supplies information to prosecuting authorities is not liable for his action as long as any ensuing prosecution is left entirely to the official's discretion. 3 Restatement of Torts § 653; Prosser, Law of Torts § 113, at 855 (3rd ed. 1964). Cf. Brumbaugh v. Frontier Refining Co., 173 Neb. 375, 113 N.W.2d 497 (1962). Nebraska has endorsed this rule in analogous situations involving a complaint of false arrest. See Edgar v. Omaha Public Power Dist., 166 Neb. 452, 89 N.W.2d 238 (1958); Jensen v. Barnett, 178 Neb. 429, 134 N.W.2d 53 (1965).

Its application, however, is not without limitations. Where the informant knowingly gives false or misleading information or in any wise directs or counsels officials in such a way so as to actively persuade and induce the officer's decision, then the informant may still be held liable. Jensen v. Barnett, supra; Edgar v. Omaha Public Power Dist., supra; Campbell v. Yellow Cab Co., 137 F.2d 918 (3 Cir. 1943); Holden v. Merritt, 92 Iowa 707, 61 N.W. 390 (1894); 3 Restatement of Torts § 653 at 386; Prosser, Law of Torts § 113, at 855 (3rd ed. 1964). As summarized in Harper and James, The Law of Torts § 4.3 (1956):

"It is not necessary that the defendant himself have made direct charges against the plaintiff. He may subject himself to liability by persuading, advising or encouraging others to do so if the other conditions to liability exist." Id. at 305.

In this regard, it is held in Nebraska that an informer's connection with the arrest may be inferred. Jensen v. Barnett, supra; Jonson v. Heller, 142 Neb. 380, 6 N.W.2d 359 (1942). In view of the verdict the plaintiff is entitled to have the evidence viewed in the light most favorable to his cause and be given the benefit of all reasonable inferences arising from the facts. See Farmers Co-operative Elev. Ass'n Non-Stock of Big Springs, Neb. v. Strand, 382 F.2d 224 (8 Cir.1967).

The facts show that defendant's investigator conducted the entire investigation, and actually solicited Mrs. Wells to sign a statement for "possible prosecution," notwithstanding her own professed desire not to sign any complaint. And, according to Mrs. Wells, Cole falsely told her, "this same employee had been involved in a similar incident in Galesburg, Illinois, only the lady there would not sign a complaint," and told her that this man needed psychiatric treatment and the only way to get it was for her to sign a statement. She believed this, and this was her reason for signing the statement. The evidence shows that Cole did tell the county attorney in effect that "he could do whatever he wanted to do" with the statement. However, his statement cannot be isolated from all the other facts leading up to the prosecution. Cole also told the county attorney that the Burlington Railroad did not want this type of man representing them. At this point Cole did not have actual knowledge that White had done anything. He only surmised White to be the driver upon checking work records of drivers in the area and upon Mrs. Wells' description. Mrs. Wells did not know White "from Adam." He did not tell Mr. Ponder, the county attorney, whether or not he had confronted White to see if he was actually the driver involved.

It is readily apparent that the defendant's role was more than a passive and disinterested one. The railroad's role was clearly distinguishable from that of Mrs. Wells. She only described an incident as she had seen it. Cole on the other hand pointed to the guilt of a particular man based only upon his suspicion that it was White who had in fact committed misconduct. Apropos is the language of an early false arrest case. In Holden v. Merrit, 92 Iowa 707, 61 N.W. 390 (1894), the defendant merely talked to the deputy United States Marshal about his suspicion that his former partner was opening his mail to steal business secrets. This lead to an investigation by the postal inspector who even interviewed the defendant. The Iowa Supreme Court said:

"It is apparent that the defendant set the machinery of the law in motion; at least, the jury was authorized to so find. It need not be shown that the defendant ordered or directed the warrant or process to issue, or that he participated in its execution. If he, on his own motion, gave information or made complaint to the officers of the law in such a manner as that, in the regular and ordinary course of events, an arrest must be made, or will probably follow, this is sufficient to warrant the jury in finding him the real prosecutor. Grant v. Deuel, 3 Rob. (La.) 17; Dennis v. Ryan, 65 N.Y. 385; Walser v. Thies, 56 Mo. 89." Id. 61 N.W. at 391.

We conclude that Cole's conduct and statements to Mrs. Wells and the county attorney and the overall circumstances surrounding the case could be viewed by a trier of fact in terms of persuasion and inducement to prosecute.

Defendant additionally argues that there existed "probable cause" as a matter of law, thus justifying Cole's actions. Defendant relies upon the "advice of counsel" rule. The Nebraska Supreme Court said in Clausen v. Omaha Loan & Bldg. Ass'n, 131 Neb. 666, 269 N.W. 517 (1936):

"`As a general rule, "one who, before instituting a criminal prosecution, makes a full, fair, and honest statement to an attorney of all the facts within his knowledge, or which he could have ascertained by the exercise of reasonable diligence, bearing upon the guilt of the accused, and in good faith acts upon his advice, will not be liable in an action for malicious prosecution."\' Duffy v. Scheerger, 91 Neb. 511, 136 N.W. 724, by Letton, J.; Jensen v. Halstead, 61 Neb. 249, 85 N.W. 78, Norval, C. J." (Emphasis ours.) Id. at 670-671, 269 N.W. at 520.

This rule although somewhat deviate from the general rule,¹ is explained in Brewer v. Fischer, 144 Neb. 712, 14 N.W.2d 315 (1944). In Bechel v. Pacific Exp. Co., 65 Neb. 826, 91 N.W. 853 (1902), the court said:

"The strongest point made on behalf of plaintiff is that the prosecuting witness and the officers of the defendant corporation neglected to go to Mr. Bechel before beginning the prosecution and learn his version or explanation of the transactions upon which the prosecution was founded. Undoubtedly a person who suspects another having committed an offense is bound to verify his suspicions by such inquiry as reasonable care and prudence would suggest, under the circumstances of the particular case, before making a complaint. * * * If he neglects to make such inquiry as would be natural and reasonable under the circumstances of the case, he is chargeable with notice of the facts which such inquiry would have disclosed." Id. at 828-829, 91 N.W. at 854.

This court also followed the Nebraska rule in Walton Trust Co. v. Taylor, 2 F.2d 342 (8 Cir. 1924). There the defendant failed to confront the plaintiff of his suspicion that plaintiff had forged a deed of trust before the defendant reported to law enforcement officers.

The court in discussing probable cause reasoned:

"Defendants could not deliberately refrain from trying to learn facts readily ascertainable, and afterward successfully contend that the half facts in their possession were a sufficient basis for probable cause; nor would the imparting of such half facts to an attorney form a sufficient foundation for the defense `advice of counsel\'.

"* * * we are clearly

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