Rogers v. Barbera

• Decision Date: 13 January 1960
• Docket Number: No. 35964,35964
• Citation: 10 O.O.2d 248,164 N.E.2d 162,170 Ohio St. 241
• Parties: , 10 O.O.2d 248 ROGERS, Appellee, v. BARBERA, Appellant.
• Court: Ohio Supreme Court

Page 241

170 Ohio St. 241

164 N.E.2d 162, 10 O.O.2d 248

ROGERS, Appellee, v. BARBERA, Appellant.

No. 35964.

Supreme Court of Ohio.

Jan. 13, 1960.

Syllabus by the Court

1. The essential elements of a malicious prosecution are (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the defendant. (Paragraph two of the syllabus of Davis v. Tunison, 168 Ohio St. 471, 155 N.E.2d 904, modified).

2. Where the proof in a malicious prosecution action shows only that the defendant was one of four persons who identified the plaintiff in a police lineup, and that the affidavit as a result of which the plaintiff was arrested was signed by a police officer, and where there is no allegation or proof of a conspiracy between such identifying witnesses to cause the arrest of plaintiff, there is no lack of probable cause from which the element of malice may be inferred.

The parties will be designated herein as they were in the trial court.

Plaintiff instituted this action in the Common Pleas Court of Cuyahoga County by filing a petition which, omitting the formal parts thereof, reads in part as follows:

'1. That said defendants are and at all times herein mentioned were the owners of a tavern located at 2128 Woodland Avenue, Cleveland, Ohio, known as Jimmy Joe's Lounge;

'2. That on or about the 27th day of March, 1954, said defendants falsely accused the plaintiff of committing an armed robbery on the premises hereinbefore described and taking cash or checks in the sum of seven thousand seven hundred thirty-nine dollars ($7,739) which was the property of said defendants, and caused plaintiff to be imprisoned in the county jail of Cuyahoga County, Ohio, and caused him to be deprived of his liberty from the 27th day of March, 1954, to the 6th day of June, 1954;

'3. That said accusation was false and said arrest and imprisonment was caused by said false accusation and that in causing the arrest and imprisonment of the plaintiff, said defendants acted wantonly, without probable cause and in reckless disregard of the rights of the plaintiff--who was released from such imprisonment on the 6th day of June, 1954, by the Grand Jury of Cuyahoga County, which found no probable cause for such arrest and imprisonment;

'4. That the plaintiff, at the time of and before such arrest, was known by the defendants to be of good reputation and as a result of such unfounded arrest and imprisonment and said false charge, plaintiff suffered humiliation, indignities, mental anguish and injury to his reputation.'

Plaintiff's petition continues with allegations of injury and a prayer for damages therefor. To this petition were filed general denials.

The case proceeded to trial, and, at the close of the plaintiff's evidence, counsel for defendants made three motions, as follows:

1. To require the plaintiff to elect which defendant he would proceed against.

2. For the removal of the allegations of false arrest and false imprisonment from the consideration of the jury.

3. For a directed verdict in favor of the defendants or either of them depending on the court's ruling on the motion to elect.

Upon the making of these motions, counsel for plaintiff voluntarily had Nuniziata Barbera dismissed and elected to proceed against James Barbera.

The court ruled on the other two motions as follows:

'As to the defendant James Barbera the court feels that it will grant the motion with reference to false imprisonment action and will overrule the motion for an instructed verdict on behalf of the defendant and we will proceed on the malicious prosecution.' (Emphasis added.)

The motion for directed verdict was renewed by the defendant at the close of all the evidence and was overruled.

The jury returned a verdict for the plaintiff in the sum of $6,000 for compensatory damages and $2,000 for exemplary damages.

Defendant's motions for judgment notwithstanding the verdict and for new trial were overruled.

The Court of Appeals for Cuyahoga County affirmed the judgment of the Court of Common Pleas, and the cause is before this court upon the allowance of a motion to certify the record.

John M. Drain, Cleveland, for appellant.

Clarence K. Snyder and John P. Butler, Cleveland, for appellee.

BELL, Judge.

Having taken from any possible consideration by the jury the allegations of false imprisonment, the trial court, on motion to direct a verdict, was faced first with the question of whether the petition states a cause of action for malicious prosecution. See Morgenstern v. Austin, 170 Ohio St. 113, 162 N.E.2d 849.

In 22 American Jurisprudence, 353, False Imprisonment, Section 2 and 3, it is said:

'False imprisonment has been said to be the unlawful restraint by one person of the physical liberty of another. In this phrase, the word 'false' seems to be exactly synonymous with 'unlawful.' False imprisonment has been defined by statute as 'the unlawful violation of the personal liberty of another' * * *.

'As is seen from the definitions, false arrest and false imprisonment as causes of action are indistinguishable. The only distinction lies in the manner in which they arise. In a false arrest, false imprisonment exists, but the detention is by reason of an asserted legal authority to enforce the processes of the law; in a false imprisonment, the detention is purely a matter between private persons for a private end, and there is no intention of bringing the person detained before a court, or of otherwise securing the administration of the law.

'An action for false imprisonment is closely akin to the actions for malicious prosecution, abuse of process, and vexatious suit. * * * Both courts and text writers have sometimes confused these causes of action * * *. In false imprisonment, the essence of the tort consists in depriving the plaintiff of his liberty without lawful justification; and the good intention of the defendant does not excuse, nor does his evil intention create, the tort. * * * Although malicious prosecution and false imprisonment are frequently confused, the distinction between them is fundamental. In the case of malicious prosecution, as in abuse of process, valid process justifies restraint or imprisonment, and the gist of the cause of action is malice or evil intent. * * * A suit for false arrest or false imprisonment is the proper action where the aggrieved party is arrested without legal process, or under a void process; but where the process on which the arrest is made is regular on its face, but is sued out maliciously and without probable cause, the remedy is an action for malicious prosecution.' (Emphasis added.)

This distinction was recognized by this court in Brinkman v. Drolesbaugh, 97 Ohio St. 171, 119 N.E. 451, L.R.A.1918F, 1132, where it is said, in the second paragraph of the syllabus:

'False imprisonment per se is not concerned with good or bad faith, malicious motive, or want of probable cause on the part of the prosecuting witness, or the officer causing the imprisonment. If the imprisonment was lawful, it is not the less lawful that any or all of the foregoing elements existed. These elements relate to an action or malicious prosecution, but are not essential to an action in false imprisonment.'

The essential elements of fact in an action for malicious prosecution and the necessity for alleging those elements were established early in Ohio in the case of Anderson v. Buchanan, Wright, 725, in which it was held:

'To sustain an action on the case for malicious prosecution, malice and the want of probable cause must concur, and the prosecution be at an end. This must be alleged, and is so in this case.'

Those requirements have been since adhered to by this court. Woodruff v. Paschen, 105 Ohio St. 396, 137 N.E. 867.

The petition herein unquestionably alleges both the termination of the prosecution favorable to the plaintiff and the lack of probable cause. Is the third element, that of 'malice,' properly alleged? If the words, 'acted wantonly * * * and in reckless disregard of the rights of the plaintiff,' can be interpreted as an allegation of 'malice,' that question must be answered in the affirmative.

The majority of the members of this court are of the opinion that the conduct of a party may be either 'wanton' or 'reckless' and still not have been actuated by malice or ill will. And in the concept in which 'wanton' is most frequently encountered--in the field of negligence and more particularly in regard to the guest statute--to constitute 'wanton negligence' (a term no longer sanctioned in Ohio but succeeded by the term, 'wanton misconduct,' in guest statute cases) it is not necessary that there be ill will toward the person injured. Higbee Co. v. Jackson, 101 Ohio St. 75, 128 N.E. 61, 14 A.L.R. 131; Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, 119 A.L.R. 646.

And were it not for certain wording in an illustrative phrase used in both the syllabus and opinion of Davis v. Tunison, 168 Ohio St. 471, 155 N.E.2d 904, we would have no difficulty in holding that an allegation of 'wantonness' does not constitute the requisite allegation of malice in an action for malicious prosecution.

The primary point for decision in Davis v. Tunison, supra, was whether the question of punitive damages could be submitted to a jury in the absence of proof of actual malice. This court held it could not. But it also held, and properly so, that actual malice may be inferred from conduct and surrounding circumstances, provided there is evidence to reasonably justify the inference. This could have been decided just as effectively if the second paragraph of the syllabus had read:

'Actual malice may be inferred from conduct and surrounding circumstances, such as a malicious prosecution, but there must be evidence from which such malice can reasonably be inferred to justify punitive in addition to compensatory damages.'

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