Krieg v. Dayton-Hudson Corp.

• Decision Date: 03 November 1981
• Docket Number: No. 80-998,DAYTON-HUDSON,80-998
• Citation: 311 N.W.2d 641,104 Wis.2d 455
• Parties: Joyce KRIEG and Dickey Krieg, Plaintiffs-Appellants-Petitioners, v.CORPORATION, a Minnesota Corporation, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 641

311 N.W.2d 641

104 Wis.2d 455

Joyce KRIEG and Dickey Krieg, Plaintiffs-Appellants-Petitioners, v. DAYTON-HUDSON CORPORATION, a Minnesota Corporation Defendants-Respondents.

No. 80-998.

Supreme Court of Wisconsin.

Argued Oct. 5, 1981.

Decided Nov. 3, 1981.

Carlton Roffa, Milwaukee, for plaintiffs-appellants-petitioners.

Michael J. Cieslewicz, Milwaukee (argued), for defendants-respondents; Kasdorf, Dall, Lewis & Swietlik, S. C., Milwaukee, on brief.

CALLOW, Justice.

This is a review of a decision of the court of appeals affirming a summary judgment granted on the motion of Dayton-Hudson Corporation dismissing the Kriegs' claims for malicious prosecution. Summary judgment was entered by Milwaukee county circuit court, Judge Leander J. Foley, Jr., on April 18, 1980.

This controversy stems from the August 9, 1976, arrest of Joyce Krieg (Krieg), the restaurant manager of a Target Store, a division of the Dayton-Hudson Corporation. The complaint alleged that Krieg had been observed, by store security personnel using a surveillance camera, taking a $20 bill from a cash register in her department. Krieg was tried and convicted of theft on September 15, 1976, in the Wauwatosa municipal court, attorney John A. Pfannerstill presiding. A municipal court is not a court of record, although its judgments are final if not appealed. ¹ On appeal, Krieg's conviction was overturned in a trial de novo in Milwaukee county circuit court on February 7, 1977.

Two years following the trial, Krieg, joined by her husband, commenced the present malicious prosecution action against the Dayton-Hudson Corporation. Petitioners' alleged in their complaint that collateral fraud had resulted in Krieg's theft conviction at the municipal court. ² Respondent moved for summary judgment, asserting that the municipal court conviction was conclusive evidence of probable cause in a subsequent malicious prosecution action. Petitioners' attorney filed his affidavit in opposition to the motion, alleging that the witnesses involved in the case had "changed their testimony." ³ The trial court granted respondent's motion for summary judgment, and the court of appeals affirmed, 101 Wis.2d 733, 306 N.W.2d 305, holding that the municipal court conviction was conclusive evidence of probable cause, thereby barring the malicious prosecution action. Both of the lower courts held that the affidavit of petitioners' attorney did not properly raise the issue of collateral fraud needed to overcome the conclusiveness of probable cause because it failed to meet the statutory requirement that affidavits in opposition to motions for summary judgment be based on personal knowledge. ⁴ We agree and affirm the judgment.

The issue raised on this appeal is whether a conviction in a court not of record but presided over by a judge who is an attorney, even though subsequently reversed on appeal, is nevertheless conclusive evidence of probable cause in a subsequent action for malicious prosecution. We note that this specific question regarding the effect of a conviction was left unanswered, apparently for this day, twenty years ago in Tarantino v. Griebel, 9 Wis.2d 37, 42, 100 N.W.2d 350 (1960). In Tarantino this court held that a conviction in a court of record, even though subsequently reversed on appeal, was conclusive to establish the existence of probable cause. ⁵

The common law tort of malicious prosecution has not been favored by the courts, and in Wisconsin we have taken a restrictive position on this tort. ⁶ While we want to afford a remedy to those who have been truly wronged, we must also deter frivolous or groundless litigation. In order to accomplish this, the tort of malicious prosecution is designed to place a stringent burden upon a plaintiff to meet the following elements:

" '1. There must have been a prior institution or continuation of some regular judicial proceedings against the plaintiff in this action for malicious prosecution.

" '2. Such former proceedings must have been by, or at the instance of, the defendant in this action for malicious prosecution.

" '3. The former proceedings must have terminated in favor of the defendant therein, the plaintiff in the action for malicious prosecution.

" '4. There must have been malice in instituting the former proceedings.

" '5. There must have been want of probable cause for the institution of the former proceedings.

" '6. There must have been injury or damage resulting to the plaintiff from the former proceedings.' "

Pollock v. Vilter Mfg. Corp., 23 Wis.2d 29, 37, 126 N.W.2d 602 (1964) (quoting Elmer v. Chicago & N. W. R. Co., 257 Wis. 228, 231, 43 N.W.2d 244 (1950)). It is well-settled law in this state and elsewhere that lack of probable cause is an essential element of an action for malicious prosecution. Heilgeist v. Chasser, 98 Wis.2d 97, 101, 295 N.W.2d 26 (Ct.App.1980); Tarantino v. Griebel, 9 Wis.2d at 39, 100 N.W.2d 350; Elmer v. Chicago & N. W. R. Co., 257 Wis. at 232, 43 N.W.2d 244.

It is equally well-settled Wisconsin law, and the majority rule, that in the absence of collateral fraud a conviction in a court of record, even though reversed on appeal, is conclusive evidence of the existence of probable cause in a subsequent malicious prosecution action. Tarantino v. Griebel, 9 Wis.2d at 42, 43, 100 N.W.2d 350; Schaefer v. Hayes, 30 Wis.2d 424, 141 N.W.2d 210 (1966); Topolewski v. Plankinton Packing Co., 143 Wis. 52, 126 N.W. 554 (1910). We note that these previous decisions are grounded on sound public policy:

" 'The idea is that the administration of the criminal law should not be embarrassed by such dangers to informers as will efficiently deter them from making known to professional legal advisers such information as they may have respecting probability of crime having been committed and the guilty parties; that so long as they act honestly they should have complete immunity from consequences.' " Tarantino v. Griebel, 9 Wis.2d at 40, 100 N.W.2d 350.

Accord, Crescent City Live Stock Co. v. Butchers' Union Slaughter-House Co., 120 U.S. 141, 7 S.Ct. 472, 30 L.Ed. 614 (1887). We affirm the conclusion that sound public policy and fairness to litigants require that the informant, acting in good faith, be immunized from any consequences.

The policy enunciated in the Tarantino case was applied in Schaefer v. Hayes, supra, a controversy we perceive as being on point with the case before us. In Schaefer, the Tarantino holding was extended to cover convictions before a justice of the peace who was also an attorney, entitling them to the same conclusive posture regarding probable cause established in the earlier cases. Schaefer v. Hayes, 30 Wis.2d at 426, 141 N.W.2d 210.

Petitioner urges this court to limit the Tarantino holding to courts of record. Petitioner cites the decision in Bigelow v. Sickles, 80 Wis. 98, 49 N.W. 106 (1891), and urges us to apply at most a prima facie standard to a conviction occurring in a court not of record. The Bigelow case, however, dealt with the effect of a judgment of discharge in the original action before a justice of the peace who upon hearing testimony concluded the complaint was without probable cause. We find the Bigelow case distinguishable from the instant controversy which deals with the effect of a conviction on a subsequent malicious prosecution action.

We are asked to decide in this case whether the fact that the conviction took place in a court not of record and presided over by an attorney-judge should preclude the conclusiveness rule from applying. We determine that it does not.

We are guided in reaching this conclusion by both the Schaefer decision as well as the Restatement (Second) of Torts. We note that the municipal court is clothed with many of the same attributes of the now abolished constitutional justice of the peace court. In Schaefer the justice of the peace was an attorney; in the instant case the municipal court justice was also an attorney. A presiding judge who is an attorney is knowledgeable of the Rules of Evidence. A finding of guilt would logically evidence probable cause for the institution of the proceedings. We quote the words of the court in Bigelow v. Sickles : "The law presumes the justice both capable and honest, and his judgment ... is as conclusive as that of any other court within his jurisdiction." 80 Wis. at 106, 49 N.W. 106. (Case dealing with the effect of the discharge of the plaintiff before a justice of the peace.) As the United States Supreme Court long ago stated:

"(T)he judgment ... of a court having jurisdiction of the parties and of the subject-matter, in favor of the plaintiff, is sufficient evidence of probable cause for its institution, although subsequently reversed by an appellate tribunal .... It is an invincible presumption of the law that the judicial tribunal, acting within its jurisdiction, has acted impartially and honestly .... (I)ts judgments cannot be impugned except by direct process from superior authority. The integrity and value of the judicial system, as an institution for the administration of public and private justice, rests largely upon this wholesome principle." Crescent City Live Stock Co. v. Butchers' Union Slaughter-House Co., 120 U.S. at 159-60, 7 S.Ct. at 481-82.

We find the qualifications of the presiding judge controlling on the issue before us, and the fact that the court was not one of record does not change our conclusion in this matter. While a record gives the reviewing authority the opportunity to evaluate the evidence upon which the determination was made, we find that an authoritative judicial determination by a competent court invested with the power and sanctity to judge is the indispensable element.

We hold that a finding of guilt by a properly empowered tribunal where the presiding person is an attorney conclusively establishes probable cause whether or not the court was of record. We note support for our conclusion in the Restatement (Se...