House v. Ane

• Decision Date: 09 July 1975
• Docket Number: No. 5513,5513
• Citation: 538 P.2d 320,56 Haw. 383
• Parties: James Donald HOUSE, Plaintiff-Appellant, v. Gilbert ANE et al., Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 320

538 P.2d 320

56 Haw. 383

James Donald HOUSE, Plaintiff-Appellant, v. Gilbert ANE et al., Defendants-Appellees.

No. 5513.

Supreme Court of Hawai'i.

July 9, 1975.

Syllabus by the Court

1. A showing that plaintiff was tried and convicted of disorderly conduct in the district court establishes conclusively the existence of probable cause in a subsequent malicious prosecution action and constitutes a bar to such action, despite a subsequent appeal to the circuit court for a trial de novo resulting in dismissal of the case, unless the conviction was obtained by fraud, perjury, or other corrupt means.

2. A conflict in the evidence indicates at most that there is more than one version of what occurred. It is thus insufficient to satisfy the requirement of proof that the defendants employed a knowing falsity, dures or other undue means.

3. Under HRS § 708-3, a police officer may make an arrest without a warrant for an offense, which he has probable cause to believe is being committed in his presence, though it be a misdemeanor. The probable cause which will justify such an arrest for a misdemeanor without a warrant must be based on the officer's personal knowledge acquired at the time through his senses, or inferences properly drawn from such knowledge.

4. Under the prevailing view a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.

5. In an action for false imprisonment against a police officer, a showing that plaintiff was arrested without a warrant by such police officer for disorderly conduct committed in his presence and that plaintiff was later charged, tried and convicted in the district court for such offense, would establish conclusively the existence of probable cause for the arrest. It thus constitutes a bar to such action, notwithstanding that such conviction was subsequently appealed to the circuit court for trial de novo resulting in dismissal for lack of prosecution, unless the conviction was obtained by fraud, perjury, or other corrupt means.

Richard L. Rost, Honolulu (Padgett, Greeley, Marumoto & Steiner, Honolulu, of counsel), for plaintiff-Appellant.

Robert E. St. Sure, Deputy Corp. Counsel, Honolulu (Richard K. Sharpless, Corp. Counsel, Honolulu, of counsel), for defendants-appellees.

Before RICHARDSON, C. J., KOBAYASHI, OGATA and MENOR, JJ., and Retired Justice LEWIS assigned by reason of vacancy.

OGATA, Justice.

This is an action for false imprisonment and malicious prosecution. Both claims stem from the same 1971 incident, as a result of which plaintiff was arrested for and charged with disorderly conduct, a misdemeanor. ¹ At the close of plaintiff's case the circuit court directed a verdict for defendants on both counts, and plaintiff has appealed from the judgment. We affirm.

Based upon the format of the opening brief, which presents to us plaintiff's arguments on malicious prosecution first, followed by his arguments on the subject of false imprisonment, we proceed to consider and dispose the subject matter of this appeal in the reverse order of these claims as set forth in the complaint. We take up first plaintiff's malicious prosecution claim set forth under count II of his complaint and then follow with plaintiff's false imprisonment claim under count I.

I. MALICIOUS PROSECUTION

Defendant contend that plaintiff's conviction of disorderly conduct in the district court of Honolulu, ² even though appealed to the circuit court where the charge was dismissed, ³ is a bar to the plaintiff's action for damages for malicious prosecution on the ground that the conviction conclusively established the existence of probable cause. Recognizing the nonapplicability of this asserted rule if the conviction was obtained by fraud, perjury or other corrupt means, defendants further argue that there is not a scintilla of evidence that such was the case.

The circuit court directed the verdict for defendants on both claims because of insufficiency of the evidence presented by plaintiff. As we held in Inter-Island Resorts v. Akahane, 44 Haw. 93, 96, 352 P.2d 856, 859 (1960), and Coelho v. Fernandez, 46 Haw. 578, 582, 384 P.2d 527, 529-530 (1963), this does not preclude the appellate court from affirming on a different ground, and we proceed to consideration of the rule asserted by defendants. It was urged in the trial court as one of the grounds of the motion for a directed verdict as to the claim for malicious prosecution.

This rule is supported by the Restatement of Torts, § 667(1), and the weight of authority. ⁴ However, plaintiff urges us not to adopt it for reasons now considered.

At the time involved, district courts were not courts of record. ⁵ Plaintiff cites Chapman v. City of Reno, 85 Nev. 365, 455 P.2d 618 (1969), which applied the minority rule that the conviction was only prima facie evidence of probable cause, on the ground that the convicting court was not a court of record and the appeal to a court of record for trial de novo had resulted in an acquittal. The court said:

'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 court, presided over by a trained judicial officer with the proceedings fully reported, justify our adoption of the announced rule.' 85 Nev. at 369, 455 P.2d at 620.

The above stated reasons do not apply here. This court takes judicial notice that transcripts of proceedings in the district court of Honolulu were available ⁶ even before it became a court of record. In the present case, the transcript of the trial shows the availability of a transcript of the criminal proceedings in the district court. The district magistrates of Honolulu, as they then were called, were required to be attorneys licensed to practice in all the courts of the state. ⁷ We note that in Schaefer v. Hayes, 30 Wis.2d 424, 141 N.W.2d 210 (1966), the Supreme Court of Wisconsin held on the point reserved in Tarantino v. Griebel, 9 Wis.2d 37, 100 N.W.2d 350 (1960), that a conviction by a court not of record was conclusive, when the justice of the peace who adjudged the plaintiff guilty was a lawyer.

In the matter of ultimate disposition of the criminal case, Schaefer v. Hayes, supra, is very similar to the present case. See also, Bumphus v. Smith, 189 A.2d 130 (App.D.C.1963); Priddy v. Cook's United Department Store, 17 N.C.App. 322, 194 S.E.2d 58 (1973). In the Restatement of Torts, it is stated in Comment b on sec. 667(1):

'b. The rule stated in this Subsection applies both where the proceedings are abandoned after the conviction has been set aside by the appellate court and where, after a conviction has been set aside, the accused is acquitted upon a second trial.'

Plaintiff's main reliance is upon the argument that the majority rule is a bad rule, which this court should not adopt. Plaintiff urges that he will not have had his day in court unless a jury hears his version of the incident and makes a decision based upon his version versus the versions given by the defendants. Of course, the majority rule makes the trial court in the criminal case the arbiter of the facts as well as the law when the criminal case is tried without a jury.

Under the law as it read at the time involved, disorderly conduct was a misdemeanor and a jury trial could have been demanded at the option of the plaintiff at the time of arraignment on the criminal charge. ⁸ At the present time disorderly conduct is a petty misdemeanor, ⁹ and there is no right of jury trial. However, we do not base our decision on the proposition that plaintiff's argument falls of its own weight in this particular case. Instead, we reject the argument that fact finding by a judge when provided for by law is not entitled to the same weight as fact finding by a jury. As stated in Comment a on Restatement of Torts § 667(1):

'a. The rule stated in this Subsection is applicable, not only where the accused has been convicted by a court consisting of a judge and jury or by a judge sitting as the trier of facts as well as of law, but also where the conviction is by a magistrate in a case in which he has summary jurisdiction.'

The majority view is founded on 'grounds of public policy in vindication of the dignity and authority of judicial tribunals constituted for the purpose of administering justice according to law * * *.' Crescent City Live Stock Company v. Butchers' Union Slaughter-House Company, 120 U.S. 141, 159, 7 S.Ct. 472, 481, 30 L.Ed. 614 (1887). As stated in Tarantino v. Griebel, supra, 9 Wis.2d at 42, 100 N.W.2d at 353:

'It is true the judgment in the district court * * * has no effect so far as the conviction of the respondent is concerned, but the reversal of the conviction on appeal or the superseding of that conviction by an acquittal after a trial de novo does not destroy the fact, for the purpose of determining probable cause, that there was a conviction in the district court. * * *'

We come now to the question of whether fraud, perjury, or other corrupt means was employed, thus rendering the conviction no bar to plaintiff's action. Plaintiff testified that he 'felt that the testimony given against me in the District Court was untrue and that this wasn't the way it happened * * *.' At most, a conflict in the evidence was shown, with plaintiff testifying to one version of what occurred and defendants to another. Such conflicts in the evidence are commonplace. What is required is proof that defendants employed knowing falsity, duress, or other undue means, such as was adduced in Moore v. Winfield, 207 N.C. 767, 178 S.E. 605 (1935)....