Powers v. Carvalho

• Decision Date: 03 February 1977
• Docket Number: No. 75-107-A,75-107-A
• Parties: Lee William POWERS v. Jack CARVALHO. ppeal.
• Court: Rhode Island Supreme Court

Page 1242

368 A.2d 1242

117 R.I. 519

Lee William POWERS v. Jack CARVALHO.

No. 75-107-Appeal.

Supreme Court of Rhode Island.

Feb. 3, 1977.

[117 R.I. 534] John F. McBurney, Jr., Pawtucket, for plaintiff.

Blais, Cunningham, Thayer, Gagnon & Ross, Ronald R. Gagnon, Pawtucket, for defendant.

OPINION

KELLEHER, Justice.

This is an appeal from a civl action wherein the jury awarded the plaintiff damages for false imprisonment, slander, and assault and battery. ¹ The defendant alleges as error certain evidentiary rulings of the trial jutice and his denial of the defendant's motions for a directed verdict and a new trial.

These parties have visited our court before. In Powers v. Carvalho, 109 R.I. 120, 281 A.2d 298 (1971), we remanded the controversy to the Superior Court for a new trial because the trial justice had allowed evidence that the plaintiff had successfully passed a lie detector test. ² A brief recounting of the evidence presented at trial is merited. We shall refer to the litigants by their last names.

This drama began on March 26, 1956. Carvalho at that time was 58 years old and owned a retail liquor store in Pawtucket. He testified that at 11:30 a.m. on the day in question, Powers entered his store, struck him over the head with a whiskey bottle, and attempted to open the cash register. A struggle ensued, and Powers fled the scene. When the police arrived. Carvalho gave them a description of his assailant and further identified the would-be robber as a man who some 2 hours earlier had a verbal tiff with a girl on the sidewalk in front of his store. Carvalho also told the police that the intruder lived in a nearby hotel.

A team of detectives went to the hotel and arrested Powers and took him to police headquarters. The total elapsed time between the arrival of the police at the liquor store and his apprehension was a half hour. Later, Carvalho went to the station and made a positive identification of Powers as the wrongdoer, and he further affirmed his conviction by punching Powers in the eye during the course of the police interrogation. Carvalho admitted the assault but claimed he was provoked by Powers' calling him a 'Porgee liar.' The police chief who was present during the interrogation told the jury that he recalled the punch but not the provocation.

Two witnesses to the flight portion of the attempted robbery were also brought to police headquarters and witnessed a lineup; neither could identify Powers as the assailant. After a further investigation into the incident, the police could find no evidence, besides Carvalho's identification, implicating Powers in the crime. No charges were filed against Powers, and he was released from custody 2 days after his arrest. Three months thereafter he instituted this suit.

In the spring of 1956 Powers was employed as a trainer of throughbred horses at Lincoln Downs. At the second trial in December of 1971 he presented corroborated testimony which indicated that on the morning of the attempted robbery he had been at the racetrack. Returning to Pawtucket at about 11:30 a.m., he and two friends went to his hotel room. The friends decided to go somewhere and get a beer, and are Powers left his room to join them, he was arrested. He testified that as a result of his 2-day incarceration he was unable to regain his job at the racetrack. Since that time to the present Powers has been able to procure only part-time employment.

Powers admitted that at 9 a.m. on the day in question he participated in a verbal argument with a girl in front of Carvalho's establishment. The girl was his wife, Adrienne. Adrienne testified that she and Powers did have a brief encounter outside Carvalho's store concerning the use of their car. Powers won and took the car to the racetrack. In the spring of 1956 Adrienne was 19 and, as Powers told the jury, 'a really pretty girl.' Her testimony and that of another witness tended to establish that Carvalho had a more than passing interest in Adrienne's welfare and Powers' treatment of her.

Adrienne testified that as she headed back to the hotel after the sidewalk confrontation had ended, she met Carvalho, who told her that she did not have to take that 'kind of abuse'; that the hotel was no place for her; and that Powers was 'a bad man.' She also added that Carvalho informed her that he owned some apartments and that he 'could be good to a girl like you.' Adrienne also said that the day following the assault incident she returned to Carvalho's store and pleaded with him to think through what had gone on because her husband 'couldn't have done this, and didn't do it.' According to this witness, Carvalho replied that he was sorry. Adrienne told the jury that whenever she passed by the store, Carvalho would come to the entrance and make 'friendly little remarks-kind of flirting.' She also said that she had seen Carvalho at the hotel.

Carvalho denied having any extended conversations or meetings with Powers' spouse. He insisted that his only encounter with Adrienne occurred on the day following the assault, when she entered the store and told Carvalho that her husband was going to sue him. Carvalho, who speaks English with some difficulty, replied: 'I don't care. He can do anything if he like him. He's a bad boy.'

There was testimony from a friend of Powers that sometime in 1956 Carvalho was at the bar in the hotel where Powers resided and asked the witness if he knew the girl who was on the other side of the room. The witness told the jury that he informed Carvalho that the girl was Powers' wife.

Carvalho first contends that the trial justice erred in denying his motions for directed verdict and new trial on the false imprisonment and slander actions. For the sake of clarity, we shall briefly set out the criteria a reviewing court will follow in determining the appropriateness of the trial court's ruling, and then apply these standards to the individual causes of action.

The standard for determining whether or not a court should grant a directed verdict has been set out, and reaffirmed, by this court in numerous cases. Economou v. Valley Gas Co., 112 R.I. 514, 312 A.2d 581 (1973); Hamrick v. Yellow Cab Co., 111 R.I. 515, 304 A.2d 666 (1973); Dawson v. Rhode Island Auditorium, Inc., 104 R.I. 116, 242 A.2d 407 (1968). In Hamrick we noted that the trial justice should review all the evidence in the light most favorable to the party against whom the motion is made without weighing the evidence or considering the credibility of the witnesses and extract from the record only those reasonable inferences that support the position of the party opposing the motion. 'If after taking such a view, the trial justice finds that there exist issues upon which reasonable men might draw conflicting conclusions, the motion for a directed verdict should be denied and the issues should be left for the jury to determine. In reviewing the trial justice's decision we are bound by the same rules.' Hamrick v. Yellow Cab Co., supra 111 R.I. at 522, 304 A.2d at 671.

A trial justice, in considering a new trial motion, acts as the thirteenth juror, who must review all the evidence, pass on the credibility of witnesses, weigh the evidence, and draw reasonable inferences therefrom. If, upon an independent appraisal of the record, his experienced judgment tells him that the jury's verdict is contrary to the fair preponderance of the evidence, he must grant the motion for new trial and set aside the verdict. Barbato v. Epstein, 97 R.I. 191, 196 A.2d 836 (1964). This court will reverse a trial justice's determination only where it finds that the trial justice has misconceived or overlooked material evidence on a critical issue or was otherwise clearly wrong. Malinowski v. Zalzal, 113 R.I. 90, 317 A.2d 875 (1974); Gordon v. Campanella Corp., 112 R.I. 417, 311 A.2d 844 (1973). Moreover, even where the trial justice has erred, the jury's verdict will remain unchanged if this court, upon looking at the record in the light most favorable to the prevailing party, finds any competent evidence which sustains the jury's verdict. Morinville v. Morinville, R.I., 359 A.2d 48 (1976). With these principles before us, we now proceed to discuss the various facets of Powers' suit.

False Imprisonment

Carvalho argues at some length and with great vigor that his motion for a directed verdict on Power's claim for false imprisonment should have been granted because of a complete lack of any evidence which would indicate that his actions in identifying Powers were motivated by malice. Carvalho's reference to 'malice' indicates that he is attempting to mix some of the elements of a claim for malicious prosecution with those that constitute a claim for false imprisonment. Such a mixture cannot take because false imprisonment and malicious prosecution are two distinct torts.

Long ago this court said that false imprisonment is the unlawful detention of another without his consent, and 'malice is not an essential element thereof.' Hobbs v. Ray, 18 R.I. 84, 85, 25 A. 694, 694 (1892). The essential element of this tortious act is that the arrest complained of is made without legal process or under a void process, while, on the other hand, malicious prosecution is the institution of legal proceedings whereby an arrest is made under a lawful process and the essential elements of such an action are proof that the party instituting the proceedings which resulted in the arrest had acted with 'malice and want of probable cause.' Hobbs v. Ray, supra at 85, 25 A. at 694. In actions based upon a complaint of malicious prosecution, 'clear proof' of malice and want of probable cause is required and the stricter burden is imposed because of the belief that actions for malicious prosecution can deter the prosecution of criminal activity. Fox v. Smith, 26 R.I. 1, 5, 57 A. 932, 934 (1904). The distinctions between false imprisonment and malicious prosecution have been alluded to and stressed by ...