James W. Glover, Ltd. v. Fong

• Decision Date: 06 April 1954
• Docket Number: NO. 2948.,2948.
• Citation: 40 Haw. 503
• Parties: JAMES W. GLOVER, LIMITED v. LEONARD K. FONG.
• Court: Hawaii Supreme Court

40 Haw. 503

JAMES W. GLOVER, LIMITED

v.LEONARD K. FONG.

NO. 2948.

Supreme Court of the Territory of Hawai‘i.

Argued November 6, 1953.

Decided April 6, 1954.

ERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. R. B. JAMIESON, JUDGE.

Syllabus by the Court

A complaint is sufficient if it alleges ultimate facts from which conclusions of law may be drawn and those conclusions need not be pleaded.

Mandamus and damages are entirely consistent remedies, requiring no election, and recourse to one does not bar the other under the doctrine of the election of remedies.

Where the law requires absolutely a ministerial act to be done by a public officer and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct, irrespective of any mistake as to his duty and honest intentions.

Where a defendant by his willful refusal to perform a purely ministerial act maliciously invites mandamus in order to injure plaintiff and put it to great expense, reasonable attorney's fees and other necessary expenses of litigation to compel him to perform that act by mandamus, so invited, are within the intended harassment and may be awarded as compensatory damages in a subsequent action.

In a tort action the willful, malicious and oppressive character of a wrongful conduct invokes the doctrine of punitive damages.H. Y. C. Choy ( Fong, Miho, Choy & Chuck on the brief) for defendant in error.

F. D. Padgett ( Robertson, Castle & Anthony with him on the briefs) for plaintiff in error.

TOWSE, C. J., LE BARON AND STAINBACK, JJ.

OPINION OF THE COURT BY LE BARON, J.

This is an action in tort for actual and punitive damages in the total sum of $92,515.40 arising from the alleged willful and malicious misconduct of the defendant in refusing to perform a purely ministerial duty required by statute. The injuries resulting from that conduct are alleged to have been suffered by the plaintiff in the loss of the use of money and in the incurring of legal expenses or attorney's fees and other expenses of litigation in successfully compelling the defendant to perform his statutory duty to draw warrants. The alleged wrongful conduct occurred when the defendant was auditor of the City and County of Honolulu and while the plaintiff was entitled to have certain warrants drawn in its favor. This misconduct is alleged in two counts of the second amended complaint. The second count alleges that the misconduct is a willful and malicious refusal to draw those warrants until it became necessary to bring mandamus and compel him to do so. The first count alleges in effect that such refusal was aggravated by a willful and malicious making by the defendant of a false return in those proceedings to defeat the relief therein sought and ultimately achieved. The alleged willful and malicious making of a false return under the first count is thus a particular phase or part of the alleged willful and malicious refusal under the second count and together constitute the wrongful conduct on which the action in tort for damages is based. With respect to the prior mandamus proceedings it is needless to state at large such proceedings as they are sufficiently set forth in Glover v. Fong, Auditor, 39 Haw. 308. A demurrer was sustained to the second amended complaint on the ground that (1) the first count “states no cause of action for the reason that it does not allege that the return was false in a material and necessary allegation of fact [and] legally sufficient,” and that (2) the action as to the second count is barred by the prior mandamus proceedings on the doctrine of the election of remedies. From the order dismissing the amended complaint, the plaintiff sues out the instant writ of error.

The specification of errors on which the plaintiff relies for reversal challenges the ground on which the demurrer was sustained by the trial judge and accordingly presents two main questions of law. One goes to the sufficiency of the first count and the other to the applicability of the doctrine of election of remedies so as to bar the action as to the second count.

Before stating the question of insufficiency, the allegations pertinent to it will be first considered as set forth in the first count. They are in substance that when faced with a plain ministerial duty to draw certain approved and preaudited warrants made payable to the plaintiff, the defendant willfully refused to perform that duty “for personal and political motives and out of malice toward plaintiff * * * and with intent to injure plaintiff and to put it to large expense,” and when faced with an alternative writ of mandamus, he purported to show cause why he had not performed that duty by filing a return, the “material allegations” of which he “knew were false,” and did so “wilfully and with intent to delay and/or prevent plaintiff from obtaining the monies lawfully due it.” The defendant's continuing breach of ministerial duty before mandamus is further alleged to have been “malicious, wilful and arbitrary.” After mandamus, it is additionally alleged, particularly with respect to the false return, to have been “wilfully and maliciously [done] with intent to injure the plaintiff [and] made in bad faith.” The parts of the return alleged to be false are five of its paragraphs which the complaint identifies by number, states as to substance and characterizes as the “material allegations of fact which were false.” It would unduly burden this opinion to set out in detail those certain paragraphs, as so stated and characterized. Suffice it to say that they are destructive of the factual basis on which relief was sought and ultimately obtained in the prior mandamus proceedings and would have constituted complete defenses thereto had they not been false.

The question of insufficiency as the first of the two main questions presented relates only to the allegations of the first count which characterize the paragraphs of the return as well as the return itself. It is whether that count is insufficient because it does not further characterize those paragraphs, alleged to be “material” and “false,” by alleging them to be also “necessary” and to further characterize the return, alleged to be “false,” by alleging it to be also “legally sufficient.” Assuming without deciding the materiality of those additional characterizations, they are mere conclusions of law which may be clearly drawn from the facts alleged and add nothing to the force and effect of those facts. The well–settled rule, therefore, applies that a complaint is sufficient if it alleges ultimate facts from which conclusions of law may be drawn and that those conclusions need not be pleaded. (Miller v. City of Dayton, 70 Ohio App. 173, 41 N. E. [2d] 728;State v. Hardy, 218 Ind. 79, 30 N. E. [2d] 974;State v. McCook, 109 Conn. 621, 147 Atl. 126;Walter v. Calloway, 99 Cal. App. [2d] 675; 222 P. [2d] 455; Pinkerton v. Pritchard, 71 Ariz. 117, 223 P. [2d] 933; Smith v. Noe, 159 Tenn. 498, 19 S. W. [2d] 245.) For reasons to appear later in this opinion, it should be borne in mind at this juncture that the criterion of count one's sufficiency to state a cause of action is not the mere making of a false return upon which was bottomed an independent ancillary suit for damages at common law before the statute of 9 Anne, c. 20, but rather a malicious making thereof with intent to injure as part of the wrongful conduct for the consequences of which the substantive law of damages holds the wrongdoer responsible.

The second question of the two presented relates to the cause of action itself as stated by the second count and is whether it is barred under the doctrine of the election of remedies by the bringing to a successful conclusion of the prior action of mandamus. This question is a novel one in this jurisdiction. The learned trial judge answered it in the affirmative upon the authorities of Kendall v. Stokes, 44 U. S. 92, 3 How. 86, 11 L. ed. 506; Smith v. Berryman, 272 Mo. 365, 199 S. W. 165; and Achey v. Creech, 21 Wash. 319, 58 Pac. 208. The defendant insists that those authorities are controlling. The plaintiff counters that the statutes in Hawaii are controlling and cites authorities which it argues are persuasive and commend themselves to reason. It cites McGraw v. Gresser, 226 N. Y. 57, 123 N. E. 84; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65;Talmadge v. McDonald, 44 Ga. App. 728, 162 S. E. 856; Stiles v. Morse, 223 Mass. 174, 123 N. E. 615; Rowley v. Ferguson, 48 N. E. (2d) 243 (Ohio App. 1942).

At common law, an injured party would be clearly entitled to recover damages for a public officer's wrongful conduct in refusing to perform a purely ministerial duty even had he acted in good faith. The Supreme Court of the United States succinctly states that well–settled rule as a living part of the law to be “that where [as here] the law requires absolutely a ministerial act to be done by a public officer and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. There is an unbroken current of authorities to this effect. A mistake as to his duty and honest intentions will not excuse the offender.” (Amy v. Supervisors, 11 Wall. 136, 138, 20 L. ed. 101.) The authorities above cited by the plaintiff all support this rule in cases where, as here, the particular public officer had been compelled by peremptory writ in a prior mandamus action to perform the duty which he had refused to perform. Such rule of liability therefore is determinative of the question unless the statutory remedy of mandamus in this jurisdiction is inconsistent with the common–law remedy of damages so as to invoke the doctrine of the election of remedies.

Fundamentally, mandamus is to compel performance and not to recover damages. Consonant thereto, damages are not...