Rogers v. Hill

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: LINDE; BRYSON; TONGUE, J., specially concurring opinion, joined by LENT; HOWELL, J., dissenting in part, joined by HOLMAN; TONGUE; LENT; HOWELL; HOLMAN
• Citation: Rogers v. Hill, 576 P.2d 328, 281 Or. 491 (Or. 1978)
• Decision Date: 07 March 1978
• Parties: Robert R. ROGERS, Respondent, Cross-Appellant, v. Jerry HILL, Appellant, and Dennis Stewart, Defendant.

Page 328

576 P.2d 328

281 Or. 491

Robert R. ROGERS, Respondent, Cross-Appellant, v. Jerry HILL, Appellant and Dennis Stewart, Defendant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 3, 1977.

Decided March 7, 1978.

Edward H. Warren of Hershiser, Mitchell & Warren, Portland, argued the cause and filed a brief for appellant.

Deane Sterndale Bennett, Portland, argued the cause for respondent, cross-appellant. Michael E. Clift, Portland, filed the brief.

LINDE, Justice.

Defendant Hill, a deputy sheriff in Multnomah County, appeals from a judgment for damages awarded plaintiff Rogers on causes of action for assault and battery and malicious prosecution. The litigation arose from an altercation in the parking lot of the apartments where Rogers resided, when he intervened in an argument between Officer Hill and one Curtis. In the course of events Rogers was allegedly struck by Hill, thereafter arrested, and eventually prosecuted for resisting arrest and acquitted. Rogers subsequently brought the present action against Hill and another deputy sheriff, Stewart, who had transmitted Hill's written report to the district attorney for prosecution. Plaintiff took a voluntary nonsuit against Stewart. In his action against Hill, the jury returned verdicts for plaintiff on his claims of assault and battery and malicious prosecution and against him on a claim of false arrest.

With respect to the first cause of action, for assault and battery, defendant assigns as error the trial court's instruction to the jury that "the only evidence in this case is that the defendant did strike the plaintiff," and that this striking was a battery for which defendant would be liable unless the jury found that it was privileged. ¹ The evidence to which the trial court referred was the testimony of plaintiff and his wife. It was not contradicted by defendant, who chose not to testify in his own behalf. However, defendant contends that the occurrence of the battery itself was a jury issue because the jury was entitled to disbelieve even the uncontradicted testimony of plaintiff and his wife, especially since they were interested parties.

The question whether and when a jury may be directed to give conclusive effect to the uncontradicted testimony of a proponent of a fact in issue was reviewed by this court in Rickard v. Ellis, 230 Or. 46, 368 P.2d 396 (1962). The court concluded that it is equally incorrect to state as a general rule that uncontradicted testimony must be taken to prove the fact in issue or, at the other extreme, that the credibility of such testimony is invariably an issue for the jury. Instead, Rickard held that "whether uncontradicted testimony is such as to preclude the jury's function in testing the credibility of the witness or witnesses who gave it will depend upon the nature of the issue in the particular case which the testimony purports to resolve." 230 Or. at 52, 368 P.2d at 398. In reaching this conclusion, Justice O'Connell's opinion quoted from the opinion of Chief Justice Vanderbilt in Ferdinand v. Agricultural Insurance Co., 22 N.J. 482, 126 A.2d 323, 62 A.L.R.2d 1179 (1956), which had previously been followed in Wiebe v. Seely, Administrator, 215 Or. 331, 343-344, 335 P.2d 379, 385 (1959):

" . . . Where men of reason and fairness may entertain differing views as to the truth of testimony, whether it be uncontradicted, uncontroverted or even undisputed, evidence of such a character is for the jury. . . . (Citing cases). But when the testimony of witnesses, interested in the event or otherwise, is clear and convincing, not incredible in the light of general knowledge and common experience, not extraordinary, not contradicted in any way by witnesses or circumstances, and so plain and complete that disbelief of the story could not reasonably arise in the rational process of an (ordinarily) intelligent mind, then a question has been presented for the court to decide and not the jury. . . . (Citing cases)." Rickard v. Ellis, supra, 230 Or. at 51, 368 P.2d at 398.

Credibility, the Ferdinand opinion continued, "is but one of the elements upon which the mind must work in the determination of the final result," and not inherently beyond determination by the judge when it is not put in doubt. Thus,

where the uncontradicted testimony of a witness, interested or otherwise, is unaffected by any conflicting inferences to be drawn from it and is not improbable, extraordinary or surprising in its nature, or there is no other ground for hesitating to accept it as the truth, there is no reason for denying the verdict dictated by such evidence . . . . (Citing cases). 22 N.J. at 498, 126 A.2d at 332. ²

See also Foster v. Agri-Chem, Inc., 235 Or. 570, 385 P.2d 184 (1963); Palmer v. Van Petten Lbr. Co., 265 Or. 347, 509 P.2d 420 (1972); Wattenburg v. United Medical Lab., 269 Or. 377, 525 P.2d 113 (1974).

Although the mere statement that the effect of uncontradicted testimony "will depend upon the nature of the issue in the particular case which the testimony purports to resolve" gives little precise guidance to trial courts or counsel, Rickard itself continued by emphasizing two factors among many that bear on the question: the availability of evidence to contradict the offered testimony and the likelihood that the witness's interest in the litigation might tempt him to testify falsely. ³ They were reiterated in Schmitz v. Yant, 242 Or. 308, 317-318, 409 P.2d 346 (1965), concerning damages for loss of consortium, which the court considered to involve relations "of so intimate a character" that the credibility of plaintiff's testimony or that of his or her spouse would almost always be a jury question. Of course, not only self-interest but also the difficulty of obtaining contrary evidence indicated that result. See Streight v. Conroy, 279 Or. 289, 566 P.2d 1198 (1977), another claim of loss of consortium.

The same factors are pertinent in this case. Whether they were correctly applied is a close question. Necessarily their application in a trial setting involves the exercise of judgment by the trial court, but it is not a matter of discretion. The fact at issue was whether defendant Hill's hand struck plaintiff Rogers's face. Plaintiff's testimony was that he grabbed Curtis by the arms to keep him from "trying to get back at the officer." He continued:

The officer approached Dender Curtis and myself and he took a swing at Dender Curtis while I was hanging onto him. And Dender Curtis ducked down and I got a graze on the face and that's when I let go.

His testimony continued with additional details. Debra Rogers, plaintiff's wife, testified that she saw defendant swing at Dender Curtis while Rogers was holding Curtis's arms. "Then Denny ducked and (Hill's) fist hit Bob." Defendant's counsel did not question this part of her testimony on cross-examination. Moreover, he did not call defendant himself as a witness to contradict the Rogerses' testimony, though the contradiction of the alleged striking, if it did not occur, was not only readily but uniquely available to the defendant. ⁴

Nevertheless, we think the jury in this case might have disbelieved plaintiff's version of the striking if they had been given the opportunity. The acts in issue occurred in a setting of emotional tension after which each participant might recall events in a manner consistent with his or her recollected role. There were differences between officer Hill's written report and the testimony of Mr. and Mrs. Rogers on other aspects of the episode. It follows that the instruction stated in note 1, above, was error. ^4a

The problem of the deputy's liability for malicious prosecution is more complex. The tort consists in initiating or procuring criminal proceedings, from an improper motive and without probable cause, against another who is not guilty of the offense charged, and who ultimately gains a favorable termination of the proceedings. See, e. g., Rose v. Whitbeck, 277 Or. 791, 562 P.2d 188 (1977), modified, 278 Or. 463, 564 P.2d 671 (1977); Shoemaker v. Selnes, 220 Or. 573, 349 P.2d 473, 87 A.L.R.2d 170 (1960). This conventional listing of the elements described the traditional situation in which a private complainant sets the criminal law in motion against another person and a magistrate, grand jury, or prosecutor acts upon the charge as it is presented by the complainant. But strains appear in the formula when it is applied to an action against one who has official responsibility in the administration of criminal law but not to decide on the prosecution.

In this case, Officer Hill filed a "Crime Report" and two "Custody Reports" following the arrest of Curtis and Rogers and left further steps to others. The Custody Report on Curtis, signed by another officer who had been called to the scene, McDade, listed the charges of "harassment" and "resisting arrest"; Hill's report on Rogers listed "disorderly conduct." The Crime Report set forth the officer's version of the incident in some detail. In a box at the head of the printed form Hill identified the "Type Offense" as "harassment." The body of the narrative stated that Hill had informed Curtis that he was under arrest for harassment and Rogers that he was under arrest "for his part in interfering with my taking custody of Mr. Curtis," and that Hill had told McDade that Rogers would be taken in "for the listed charges." These reports were placed in the work basket of Deputy Stewart, whose assigned task was to transmit such reports to the prosecutor. A deputy district attorney subsequently, upon the information in these reports but without further consultation with Hill, prosecuted Rogers on the charge of "resisting arrest" of which he was acquitted.

Defendant contends that on these facts he was entitled to a directed verdict because he did not initiate the prosecution actually brought. He cites Humbert v. Knutson et al., 224 Or. 133, 354 P.2d 826 (1960), for the rule...