Apodaca v. Miller

• Decision Date: 27 May 1968
• Docket Number: No. 8494,8494
• Parties: E. Edward APODACA, Plaintiff-Appellant, v. Clair MILLER, Defendant, Third Party Plaintiff-Appellee.
• Court: New Mexico Supreme Court

Page 200

441 P.2d 200

79 N.M. 160

E. Edward APODACA, Plaintiff-Appellant, v. Clair MILLER, Defendant, Third Party Plaintiff-Appellee.

No. 8494.

Supreme Court of New Mexico.

May 27, 1968.

Adams & Vallentine, Traub, Parham & Zuris, Albuquerque, for appellant

Knight & Sullivan, Domenici & Bonham, Albuquerque, for appellee.

OPINION

MOISE, Justice.

Plaintiff appeals from a judgment in favor of defendant entered on a jury verdict denying recovery for compensatory and punitive damages allegedly suffered by reason of claimed conduct of defendant in wrongfully and without probable cause procuring the issuance of a search warrant for plaintiff's premises and the ensuing search thereof.

Briefly, the facts establish that defendant was a plumbing and heating contractor with little education and no experience in legal matters. He had suffered several thefts from his business and, when he received an anonymous telephone call (not the first he had received) describing in detail some of the property he had lost and advising that it could be found in the store of plaintiff, he proceeded to the sheriff's office where he related the facts to a lady clerk, a detective by the name of Lee, and to the sheriff. Advising that a search warrant would be required, the sheriff produced an affidavit and warrant bearing the signature of Epimenio Herrera, a justice of the peace. These documents were filled out and the affidavit signed by defendant. Thereupon, defendant accompanied detective Lee and another deputy to plaintiff's premises which were searched by the officers without any of the stolen property being discovered. Defendant did not enter plaintiff's premises but waited outside while the search was conducted.

Plaintiff alleges that he was damaged by the actions of defendant which he alleges were done recklessly, maliciously, wilfully, wantonly, and without reasonable or probable cause. Defendant sought and obtained permission to sue the justice of the peace, Epimenio Herrera, as a third-party defendant. A third-party complaint was filed and issue joined. At the trial, at the close of the case of plaintiff and third-party plaintiff, the court directed a verdict in favor of third-party defendant. Although there is no explanation for this ruling, there is no appeal from this action and, accordingly, we do not consider whether or not it was correct.

Two points are argued here by plaintiff. In the first, errors in rulings on objections to evidence are asserted, and, in the second, complaint is made concerning refusal to give three requested instructions to the jury.

Before considering either of these issues, we note defendant's position that plaintiff's points are immaterial because the plaintiff totally failed to prove that defendant acted maliciously. It is defendant's position that even if it be assumed that the court erred in either or both respects argued by plaintiff, it would not help plaintiff's case because defendant could not be liable if he acted in good faith or without malice, and that there was no proof which would support a finding of either.

In this connection, great reliance is placed on the holding of this court in Hughes v. Van Bruggen, 44 N.M. 534, 105 P.2d 494 (1940). That was a suit for malicious prosecution wherein the defendant signed a criminal complaint upon information furnished by officers, and upon instructions of the district attorney conveyed to defendant by the officers. This court approved and adopted the rule in Restatement, Torts, § 653, comment g, to the following effect:

'g. Influencing a public prosecutor. A private person who gives to a public official information of another's supposed criminal misconduct, of which the official is ignorant, obviously causes the institution of such subsequent proceedings as the official may begin on his own initiative, but giving such information or even making an accusation of criminal misconduct does not constitute a procurement of the proceedings initiated by the officer if it is left entirely to his discretion to initiate the proceedings or not. Where a private person gives to a prosecuting officer information which he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable under the rule stated in this Section even though the information proves to be false and his belief therein was one which a reasonable man would not entertain. The exercise of the officer's discretion makes the initiation of the prosecution his own and protects from liability the person whose information or accusation has led the officer to initiate the proceedings. * * *'

and then made the following pronouncement:

'It cannot detract from the rule as above so clearly stated to say that the informant may himself even sign the complaint which puts in motion the prosecution. We know that under our practice any one may sign a criminal complaint, upon information and belief, if not upon his own knowledge. We know that as a practical matter, many times complaints are signed by peace officers or members of the prosecutor's staff who have no actual knowledge of the crime. Often the person who claims to have been the victim of the offender is asked to sign the complaint. This adds nothing to the efficacy of the prosecution certainly, but it is done in many cases, perhaps, in order to enlist the interest and cooperation of the person most likely able to give testimony in behalf of the state, and whose testimony in many such cases may be indispensable.'

The court concluded that plaintiff had failed to establish a cause of action for malicious prosecution. We quote further from the opinion the reasons advanced:

'If we are to have prosecutions of law violations only at the very great hazard of unreasonably subjecting the complaining witness to the expensive ordeal and uncertain results of suits for damages if convictions not be obtained, we then approve a rule which thwarts justice upon the very threshold of its entrance. Few men would take the chance and invite such a suit, even though they would otherwise be boldened to advocate and uphold law and order. Their attitude could very properly be, 'let the order fellow to it.' The policy of the law is not, as it should not be, unreasonably to deter those who know of breaches of the law from complaining against the offenders.'

We fully appreciate that the instant case is not a suit for malicious prosecution. It would more accurately be described as a suit for damages resulting from swearing out or causing the issuance of a search warrant. However, we do not perceive that there is any difference in the rules applicable. In either case the plaintiff has the burden of establishing that the defendant maliciously and without probable cause procured the issuance of the warrant. See Williams v. Frey, 182 Okl. 556, 78 P.2d 1052 (1938), cited and relied on in Hughes v. Van Bruggen, supra. Also see Krehbiel v. Henkle, 142 Iowa 677, 121 N.W. 378 (1909). Another theory relied on by appellant is discussed later in this opinion.

The following rule, applicable in malicious prosecution actions and equally in the present action, was set forth in Delgado v. Rivera, 40 N.M. 217, 229, 57 P.2d 1141 (1936), and again in Hughes v. Van Bruggen, supra:

"To support an action for malicious criminal prosecution the plaintiff must prove, in the first place, the fact of prosecution, and that defendant was himself the prosecutor or that he instigated its commencement and that it finally terminated in his acquittal. * * * that the charge preferred against him was unfounded, and that it was made without reasonable or probable cause, and that the defendant in making or instigating it was actuated by malice."

Was defendant here the prosecutor? Did he instigate the issuance of the warrant? We again look to Hughes v. Van Bruggen, supra, where we find the following:

"Instigate's means 'to stimulate or goad to an action, especially a bad action.' * * * One of its synonyms is 'abet.' State v. Fraker, 148 Mo. 143, 49 S.W. 1017, 1022.

'The better rule is that even when initiating or participating in a criminal prosecution, the defendant, as informant, is required only to fairly disclose all the facts within his knowledge, and not all the facts which by the use of ordinary diligence should have been known to him. Williams v. Frey (182 Okl. 556, 78 P.2d 1052), supra.'

From the cases it is amply clear that to be held liable for having instigated a wrongful search with malice and without cause, there must be something more than merely stating the facts truthfully to an officer or attorney who thereupon directed certain steps be taken. Here, defendant laid the problems before the sheriff and then followed his directions. He did not 'instigate' what followed--if anybody did, it was the sheriff.

We recognize the rule to be as stated in Hughes v. Van Bruggen and Delgado v. Rivera, supra, that malice may be inferred from an absence of probable cause. Also, it is an act intentionally done without legal provocation. Marchbanks v. Young, 47 N.M. 213, 139 P.2d 594 (1943). Whether or not 'probable cause' is present is, in turn, a question of law to be resolved by the court. Marchbanks v. Young, supra.

Under the undisputed facts here present, where defendant acted on a telephone tip from an anonymous caller who described articles stolen from defendant, and defendant then did nothing but pass the information to the sheriff, at whose suggestion he signed the affidavit for a search warrant for premises of plaintiff, a total stranger, can it be said that he acted with malice? It is our considered judgment that even if we assume an absence of probable cause a conclusion that he did would not be permitted to stand on appeal, as lacking support in the evidence. Compare Vickrey v. Dunivan, 59 N.M. 90, 279 P.2d 853 (1955).

The foregoing discussion disposed of the issues presented...