Melvin v. Pence, 7968.

• Decision Date: 30 June 1942
• Docket Number: No. 7968.,7968.
• Citation: 130 F.2d 423
• Parties: MELVIN et al. v. PENCE
• Court: U.S. Court of Appeals — District of Columbia Circuit

130 F.2d 423 (1942)

MELVIN et al. v. PENCE

No. 7968.

United States Court of Appeals for the District of Columbia.

Decided June 30, 1942.

Mr. Cornelius H. Doherty, of Washington, D. C., for appellants.

Mr. James R. Murphy, with whom Mr. John P. Labofish, both of Washington, D. C., was on the brief, for appellee.

Before GRONER, Chief Justice, VINSON and RUTLEDGE, Associate Justices.

RUTLEDGE, Associate Justice.

The suit is in the nature of an action for malicious prosecution. The defendants appeal from a judgment for plaintiff for $1250, rendered after trial before a jury.

Plaintiff is a duly licensed private detective.¹ The gist of his complaint is that defendants instituted proceedings before the licensing authorities of the District of Columbia which resulted in their refusal to renew his license, but terminated in his favor on appeal. He asserts defendants acted maliciously and without probable cause, falsely charging him with impersonating a police officer.²

The case is before us upon an agreed statement of the evidence. It purports only to set forth the substance of part of the plaintiff's testimony. This was apparently in conflict with other evidence in some respects. But the testimony of the defendants and other witnesses does not appear in the record on appeal.

Defendants urge that no cause of action was made out. The proceedings were entirely administrative, not judicial, and they say such proceedings will not support an action of this character. They complain also that the instructions allowed mental anguish and injury to plaintiff's reputation to be considered in fixing the amount of the damages. We think the judgment should be affirmed.

The case is an outgrowth of the marital troubles of defendant Melvin and his former wife, Mrs. Blanche Melvin. See, Melvin v. Melvin, ___ App.D.C. ___, 129 F.2d 39, decided June 8, 1942. Early in August, 1937, she employed plaintiff to follow the movements of her husband. On the morning of August 18, that year, plaintiff accosted the defendants as they came out of an apartment. Defendant Elna N. Smith asked his identity. He replied by showing her his badge. It contained his name, "F. G. Pence," at the top. In a circular portion was an eagle surrounded by the words "Washington Detective Agency." This was his trade name. Plaintiff testified that Elna Smith read the badge; he said nothing to her, but she later asked to see the badge again. He denied telling her who he was or stating he was from the Washington Detective Bureau (a branch of the Metropolitan Police Department) or from the Washington Detective Agency.

On October 26 plaintiff received a letter from the secretary of the Commissioners of the District saying that, upon the recommendation of the Superintendent of Police, his license would not be renewed. The basis for this was two affidavits filed by defendants. They are not in the record, but it discloses they set forth that plaintiff had interviewed defendants on August 18 on a domestic matter and had stated he was from the Washington Detective Bureau.

Plaintiff's license expired November 1. He appealed to the Commissioners from the refusal to renew it. A hearing was arranged before the License Denial and Revocation Board for December 15. Defendants testified at the hearing. It resulted favorably to plaintiff, and a license was issued January 5, 1938. Near the end of November, 1937, he received permission to operate pending the disposition of his appeal.

At the close of his case, the plaintiff stated he would base his cause of action entirely on malicious prosecution. Defendants moved then and at the close of all the evidence for a directed verdict. They also moved to set aside the judgment. These motions were denied. All were founded upon the view, now urged on appeal, that the evidence was insufficient to sustain the action for want of a showing that judicial proceedings had been instituted. This is the principal ground urged for reversal.

In view of the evidence, the verdict and the manner in which the case has been presented here, no issue is before us concerning the existence of malice and probable cause. It must be taken as established that the defendants without probable cause³ charged plaintiff with impersonating a police officer, a criminal offense; made the charge for the purpose of having his license revoked, to the only authority having power to do this, and did so as an immediate consequence of his surveillance of their movements. It must be accepted also as proven that their action caused the administrative proceedings which resulted in the refusal to renew plaintiff's license, but terminated on appeal in his favor. It is clear too that special injury followed from the action, since the license was revoked.

The facts therefore follow the usual pattern of suits for malicious prosecution, successfully maintained, except that the proceedings were administrative, not judicial in character. Defendants make this the principal, in fact the only, issue on the appeal, except for their contentions in respect to the disputed items of damage. In this respect they rely upon the common statement that the tort of malicious prosecution requires the institution of judicial proceedings as an essential element in the wrong. Auerbach v. Freeman, 1915, 43 App.D.C. 176; Simmons v. Sullivan, 1914, 42 App.D.C. 523; Holmes v. Peters, 1917, 46 App.D.C. 260; Chapman v. Anderson, 1925, 55 App.D.C. 165, 3 F.2d 336; Peckham v. Union Finance Co., 1931, 60 App. D.C. 104, 48 F.2d 1016; Hicks v. Brantley, 1897, 102 Ga. 264, 29 S.E. 459; Stauffacher v. Brother, 1940, 67 S.D. 314, 292 N. W. 432, 128 A.L.R. 925. Plaintiff, on the other hand, grounds his action upon National Surety Co. v. Page, 4 Cir., 1932, 58 F.2d 145, (opinion by Judge Parker), and finds support in Fulton v. Ingalls, 1914, 165 App.Div. 323, 151 N.Y.S. 130, 132, affirmed, Fulton v. Richmond County S. P. C. C., 1915, 214 N.Y. 665, 108 N.E. 1094; Black v. Judelsohn, 1937, 251 App. Div. 559, 296 N.Y.S. 860; Bump v. Betts, 1834, 19 Wend., N.Y., 421; Breznikar v. T. J. Topper Co., 1937, 23 Cal.App.2d 298, 72 P.2d 895; Id., 1941, 46 Cal.App.2d 435, 116 P.2d 176; Hyde v. Southern Grocery Stores, Inc., 1941, 197 S.C. 263, 15 S.E.2d 353; Curley v. Automobile Finance Co., 1941, 343 Pa. 280, 23 A.2d 48.

Malicious prosecution for wrongful institution of administrative proceedings appears to have arisen surprisingly seldom, in view of the vast volume of administrative proceedings during the last half century. National Surety Co. v. Page, supra, seems to be the only case squarely in point, though the other cases supporting plaintiff's view are nearly so. These determined the issue as he says it should be decided.

None of the cases cited by defendants involved it. Though all follow the common formula that judicial proceedings must be begun and must have ended in the defendant's favor, each was directed to some other question. Thus, in Auerbach v. Freeman, supra, the court held the action could not be maintained when there had been no prosecution of any kind, but only the making of complaint and an arrest without a warrant. The case therefore is authority merely for the accepted rule that unsuccessful efforts to secure the institution of proceedings, however malicious or unfounded, are not actionable as malicious prosecution. See Harper, Torts (1933) § 268; Prosser, Torts (1941) § 96, at 863-4, and authorities cited. In Peckham v. Union Finance Co., supra 60 App.D.C. 104, 48 F. 2d 1017, a civil action was begun and terminated favorably to the defendant. But the court held this would not sustain a suit for malicious prosecution, notwithstanding malice and want of probable cause, "when there has been no arrest of the person or seizure of the property of the defendant, and no special injuries sustained, which would not necessarily result in all suits prosecuted to recover for like causes of action." This too was in accordance with generally accepted law,⁴ and indecisive of the point now presented. So with the other authorities upon which defendants rely.

On principle we think the plaintiff is right. The action for malicious prosecution was originally one for prosecution in the technical sense, that is, institution of criminal proceedings. Prosser, Torts (1941) § 96, at 860-1. That is still true in England. Id. § 97, at 886. In this country, however, it has been extended generally to include civil suits, when they result in the special consequences stated in the quotation from Peckham v. Union Finance Co., supra, 60 App.D.C. at page 105, 48 F.2d at page 1017. Civil litigation without these or similar special injuries, though instituted maliciously and without probable cause, lays no foundation for such an action. This limitation, and the broader English one, are thought necessary to maintain free access to the courts by persons with grievances, who otherwise might be restrained from seeking redress through fear of liability in the event of failure. Consequently, by the more general rule, special injury must be shown when the suit relied upon is a civil cause. See Harper, Torts (1933) § 268, notes 5-8; Prosser, Torts (1941) § 97, notes 96-99, 1-17, and authorities cited.

The limitation is sound. When disputes reach the litigious stage, usually some malice is present on both sides. Friendly tort suits are not common. Nor is existence or want of probable cause always easy to determine until the event of the litigation is known. Some margin of safety in asserting rights, though they turn out to be groundless and their assertion accompanied by some degree of ill-will, must be maintained. Otherwise litigation would lead, not to an end of disputing, but to its beginning, and rights violated would go unredressed for fear of the danger of asserting them.

Access to the courts and other tribunals, however, should not be abused. The freedom to use their processes is not absolute. When malice motivates a groundless claim...