Chapman v. City of Reno

• Decision Date: 11 June 1969
• Docket Number: No. 5663,5663
• Citation: 455 P.2d 618,85 Nev. 365
• Parties: James R. CHAPMAN, Appellant, v. The CITY OF RENO, a Municipal Corporation, Respondent.
• Court: Nevada Supreme Court

Page 618

455 P.2d 618

85 Nev. 365

James R. CHAPMAN, Appellant, v. The CITY OF RENO, a Municipal Corporation, Respondent.

No. 5663.

Supreme Court of Nevada.

June 11, 1969.

Free & Bortolin, Reno, for appellant.

Vargas, Bartlett & Dixon, Reno, for respondent.

OPINION

COLLINS, Chief Justice.

This is an appeal from a final judgment on an order of dismissal of a complaint alleging tortious conduct against appellant by a police officer of the City of Reno. The police officer and the City of Reno were named as defendants. The dismissal and final judgment were in favor of the City only.

James R. Chapman, appellant (plaintiff below), alleged four causes of action in his complaint. The first cause of action was against Mahlon P. Kent alone and contended he had maliciously adopted Chapman's minor daughter. The second cause of action was against Kent and the City of Reno. It alleged that Kent, while acting as a police officer of the City of Reno, maliciously instituted a criminal prosecution against Chapman for using foul and abusive language in a public place. Chapman was convicted of the offense in municipal court, but upon appeal to the district court and a trial de novo, he was acquitted. Chapman alleged that Kent, while in uniform, had vexed and annoyed him to the extent he had reported the conduct to the Reno Chief of Police, which failed to halt the conduct. The third cause of action was also against Kent and the City. It alleged that Kent, while in police uniform, slandered Chapman to various persons in Reno by stating that Chapman was an exfelon, a child molester, a thief, and had recently burglarized his own beauty salon to collect insurance. The fourth cause of action was against Kent and the City of Reno. It alleged that Kent, while in police uniform, advised Teddy Ann McKenna, one of Chapman's employees, that she had better quit her employment or she would become involved in a fraud scheme that Kent was perpetrating on his insurance carrier; that the employee did quit and that Kent willfully and maliciously interfered with Chapman's business relationships.

The City of Reno moved to dismiss the complaint under NRCP 12(b) for failure to state a claim upon which relief could be granted against it. The lower court, without specifying the reason for its order, granted the motion, dismissed the complaint and entered judgment for the City pursuant to NRCP 54(b). This appeal followed.

It must be clearly understood that Kent is not before the court in this appeal. We are concerned with and limit our decision to the action between Chapman and the City of Reno only.

Because no evidence was taken in the lower court, we limit our discussion to those facts alleged in Chapman's complaint and issues of law raised by the motion to dismiss. An inference to be drawn from Chapman's complaint, while not expressly stated, is that Kent is or was married to Chapman's former wife and that the difficulty between them arose out of that triangular relationship.

In ruling on the motion to dismiss, the lower court was obligated to accept as true the allegations in Chapman's complaint, to accord him favor in the inferences to be drawn therefrom, and to resolve all doubts in his favor. Hansen-Neiderhauser v. Nevada State Tax Comm., 81 Nev. 307, 402 P.2d 480 (1965); Brooks v. Dewar, 60 Nev. 219, 106 P.2d 755 (1940); Vol. 1--A Barron and Holtzoff, Federal Practice and Procedure, Sec. 350. In reviewing the action of the lower court in dismissing the complaint, we must insure that the lower court accorded him those rights.

While there were many points urged to the lower court for and against the motion to dismiss, and an equal number of issues raised in the appeal, we shall discuss only those points which are determinative of the correctness of the order dismissing the complaint against the City of Reno.

1. As to the second cause of action seeking recovery against the City of Reno for the tort of its agent, Officer Kent, for bringing about a malicious prosecution of appellant, we hold the action may be maintained against the City pursuant to the provisions of NRS 41.034, ¹ which, though since repealed was in effect at the time this cause of action arose. That statute is a special statute having application to policemen and firemen, and provides that immunity is waived both as to the political subdivision and the policemen or firemen, if that act or omission of the employee amounted to gross negligence or he was guilty of willful misconduct. While this construction of the statute accords to the policemen and firemen greater protection than that given other employees if the act involved is of a ministerial nature, it affords less protection to them than to other employees if the act involved is of a discretionary nature. See NRS 41.031 and 41.032. We note NRS 41.034 has since been repealed, indicating legislative disapproval of the immunity waived by the statute.

2. The elements of malicious prosecution, arising from termination of the criminal prosecution, are (1) want of probable cause, (2) malice, (3) termination of litigation, and (4) damage. Bonamy v. Zenoff, 77 Nev. 250, 362 P.2d 445 (1961); Catrone v. 105 Casino Corp., 82 Nev. 166, 414 P.2d 106 (1966). Malice may be inferred from proof of want of probable cause. McNamee v. Nesbitt, 24 Nev. 400, 56 P. 37 (1899). See also Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962).

Respondent contends that appellant's conviction in the municipal court is conclusive evidence of the existence of probable cause, or at least conclusive unless it was obtained by fraud, perjury or other corrupt means. See 3 Rest. Tort, Section 667. However, we think the better rule, albeit minority rule, where there is a trial de novo (resulting in an acquittal) in a court of record on appeal from conviction .of defendant in a minor, nonrecord court, is that the conviction is only prima facie evidence of probable cause. The reason for our rule is that without a record it is difficult, if not impossible, to know what transpired in the minor court. Except for the recollection of witnesses, and whatever the concise, summary court minutes might disclose, there is no other proof available of the circumstances surrounding the conviction, including evidence of fraud, perjury or other corrupt means. Those factors, balanced against an acquittal in the higher...