Sabag v. Continental South Dakota

• Decision Date: 04 September 1985
• Docket Number: No. 14526,14526
• Parties: Kurt SABAG, Plaintiff and Appellee, v. CONTINENTAL SOUTH DAKOTA and CFS Continental, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 349

374 N.W.2d 349

Kurt SABAG, Plaintiff and Appellee, v. CONTINENTAL SOUTH DAKOTA and CFS Continental, Defendants and Appellants.

No. 14526.

Supreme Court of South Dakota.

Argued Nov. 26, 1984.

Decided Sept. 4, 1985.

Edwin E. Evans of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiff and appellee; Monte R. Walz of Davenport, Evans, Hurwitz & Smith, Sioux Falls, on brief.

Gary P. Thimsen of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, for defendants and appellants.

HENDERSON, Justice.

ACTION

This is an appeal from a jury award of $65,000 in a malicious prosecution action. The trial court entered judgment upon the jury verdict and denied appellants' motions for a new trial and judgment notwithstanding the verdict. We affirm in part, reverse in part, and remand for a new trial.

FACTS

Kurt Sabag, plaintiff-appellee (Sabag), was employed as a salesman by Continental In May 1980, after nearly one and one-half years as a salesman for Continental and its predecessor, Sabag accepted a similar sales position with a competitor and gave two weeks' notice. Thereafter, this notice was reduced to one week at the request of Sabag's new employer. In his new employment, Sabag was to perform the same type of work in nearly the same geographic territory of South Dakota.

South Dakota, defendant-appellant. Continental South Dakota, a subsidiary of codefendant-appellant CFS Continental, is a wholesale distributor of food products. Continental South Dakota and CFS Continental will be collectively referred to as Continental.

Prior to informing Continental of his intention to leave, a Continental customer informed Sabag that her account had not been credited for several cash payments she had made to him. Before leaving Continental's employ, Sabag twice informed Continental's bookkeeper, Pat DeVaney, of the discrepancy. The money never surfaced and when Sabag sought to procure his final pay and reimbursement checks, he was told that they had not been prepared because of the discrepancy of $1,051.06 in this one account. At a meeting with a Continental supervisor, Fran Weber, Sabag told Weber that he had put the money and receipts under an adding machine on Pat DeVaney's desk as he had been doing throughout his employment. Weber testified at trial that this was not unusual; that he was aware of its practice by Sabag and others; and that he had acquiesced to it.

Two weeks after this initial meeting, Continental summoned Sabag to another meeting. At this second meeting, Sabag was confronted by Weber and two other Continental executives who questioned Sabag about the missing money. Although Sabag was never "accused," these Continental executives demanded that Sabag sign over the paychecks to them. Sabag refused, viewing the demand as a confession of guilt.

Thereafter, Sabag sought legal help to procure his paychecks and he contacted Attorney Tony Weisensee. Weisensee requested that Sabag take a psychological stress evaluation (PSE) and on July 3, 1980, Sabag took such a test. On July 29, 1980, Chris Rallis, the person who performed the test on Sabag, informed Attorney Weisensee that based on the evaluation results, it was his opinion that Sabag was not responsible for the unauthorized taking of money from Continental. By a letter dated August 29, 1980, Weisensee informed Continental that Sabag had submitted to a PSE and that the results therefrom indicated Sabag's innocence.

Prior to this, however, on August 26, 1980, Fran Weber and another Continental executive went to the Sioux Falls Police Department and reported the missing money. In response to questions propounded by a police detective, Weber and the other executive informed the detective that Sabag was the suspect and of the explanation given by Sabag, but they failed to inform the detective that the procedures depicted in Sabag's explanation, i.e., the placing of money, checks, and receipts under the adding machine on the bookkeeper's desk, were known to Continental and practiced by other Continental employees. By a letter dated September 17, 1980, Continental informed Attorney Weisensee that it had been advised by the State's Attorney that an arrest warrant had been issued for Sabag. After receipt of this letter, however, neither Weisensee nor Sabag contacted or delivered any information concerning the PSE to either the State's Attorney or the police. Continental, similarly, never forwarded the PSE information to the police or State's Attorney.

On September 25, 1980, at 6:30 a.m., Sabag was arrested at his home, in front of his wife and children. He was handcuffed by a deputy sheriff and taken to jail where he was fingerprinted, photographed, stripped of his possessions, and locked in a cell. Later that day, Sabag was released on his own recognizance.

On October 30, 1980, Sabag's preliminary hearing was held. At this hearing, Continental's bookkeeper, Pat DeVaney, testified In December 1980, Sabag commenced the present malicious prosecution action and after a trial on the merits in January 1984, the jury returned a verdict in favor of Sabag for $65,000. The jury declined to award punitive damages. Continental filed motions for judgment n.o.v. and for a new trial. From the denial of these motions, Continental now appeals.

under subpoena, as did the customer whose account was in question. The magistrate dismissed the charges against Sabag finding no probable cause and declaring the State's case "complete guesswork."

DECISION

I.

DID THE TRIAL COURT ERR BY ADMITTING INTO EVIDENCE TESTIMONY AND EXHIBITS CONCERNING THE RESULTS OF THE PSYCHOLOGICAL STRESS EVALUATION? WE HOLD THAT IT DID.

Over Continental's timely and appropriate objections, the trial court permitted Chris Rallis to testify that based on the results of the PSE performed on Sabag, it was his opinion that Sabag was not responsible for Continental's missing funds. Continental contends that the trial court erred in admitting this evidence, and we agree.

A PSE is a type of "voice stress analysis" which purportedly detects, measures, and graphically displays tremors or stress in a person's voice which is assumed to accompany conscious deception. See Heisse v. Vermont, 519 F.Supp. 36, 40 (D.Vt.1980); United States v. Traficant, 566 F.Supp. 1046, 1046 (N.D.Ohio 1983); and Horvath, Detecting Deception: The Promise and the Reality of Voice Stress Analysis, 27 J. Forensic Sci. 340 (1982). It is not the typical polygraph or "lie detector" test where the person is connected to a machine which measures changes in blood pressure, respiration, pulse rate, and galvanic skin responses which are also assumed to accompany conscious deception or lying. Although the PSE is not identical to a polygraph examination, its intent and purpose is the same, to wit, to detect if and when the subject is lying or being deceptive.

In South Dakota criminal cases, polygraph results are not admissible evidence. See State v. Watson, 248 N.W.2d 398, 399 (S.D.1976); and State v. O'Connor, 86 S.D. 294, 301, 194 N.W.2d 246, 250-51 (1972). This position has been recently reaffirmed in State v. Muetze, 368 N.W.2d 575, 588 (S.D.1985), wherein this Court stated: "Polygraph results are not admissible as evidence in South Dakota Courts." As for the admissibility of PSE evidence in criminal cases, the clear majority of courts considering this question do not permit its introduction into evidence. See United States v. Traficant, 566 F.Supp. at 1047; Caldwell v. State, 267 Ark. 1053, 1059, 594 S.W.2d 24, 28 (App.1980); State v. Schouest, 351 So.2d 462, 468-69 (La.1977); Smith v. State, 31 Md.App. 106, 119-20, 355 A.2d 527, 535-36 (1976); State v. Ochalla, 285 N.W.2d 683, 684 (Minn.1979); People v. Tarsia, 67 A.D.2d 210, 212, 415 N.Y.S.2d 120, 122 (1979), aff'd, 50 N.Y.2d 1, 405 N.E.2d 188, 427 N.Y.S.2d 944 (1980); and State v. Makerson, 52 N.C.App. 149, 152, 277 S.E.2d 869, 872 (1981).

Turning to the question of the admissibility of such lie detection evidence in civil trials, we note that generally, polygraph results are also not admissible in civil proceedings. See Goldthorpe v. Farmers Ins. Exchange, 19 Ariz.App. 366, 507 P.2d 978 (1973) (polygraph test inadmissible without stipulation); Robinson v. Wilson, 44 Cal.App.3d 92, 118 Cal.Rptr. 569 (1974) (polygraph test not admissible without stipulation); Whitten v. Whitten, 407 So.2d 367 (Fla.App.1981) (polygraph evidence not admissible without stipulation); Hodges v. Tomberlin, 170 Ga.App. 842, 319 S.E.2d 11 (1984) (polygraph results not admissible absent stipulation); Perry v. Commonwealth ex rel. Kessinger, 652 S.W.2d 655 (Ky.1983) (results of lie detector test not admissible in evidence); Michigan State Employees Ass'n v. Michigan Civil Serv. Comm'n, 126 Mich.App. 797, 338 N.W.2d 220 (1983) (polygraph results not admissible in civil or criminal trials); State v. Sullivan, 360 N.W.2d 418 (Minn.App.1985) (polygraph test results inadmissible in both criminal and civil actions); Gropp v. Lotton, 160 Mont. 415, 503 P.2d 661 (1972) (polygraph evidence properly excluded in civil action); State v. Brown, 297 Or. 404, 687 P.2d 751 (1984) (upon proper objection, polygraph evidence not admissible in any civil or criminal trial); Memphis Bank & Trust Co. v. Tennessee Farmers Mutual Ins. Co., 619 S.W.2d 395 (Tenn.App.1981) (results of lie detector test not admissible in civil cases); and Pierson v. McClanahan, 531 S.W.2d 672 (Tex.Civ.App.1975) (polygraph results not admissible in civil suits).

The rationale advanced for not admitting evidence of polygraph results, in civil or criminal cases, is that such evidence is irrelevant because of dubious scientific value, deVries v. St. Paul Fire & Marine Ins. Co., 716 F.2d 939 (1st Cir.1983); it has no "general scientific acceptance as a reliable and accurate means of ascertaining truth or deception," State v. Green, 271 Or. 153, 165-66, 531 P.2d 245, 251, 92 A.L.R.3d 1301, 1309 (1975); it is not reliable, M.N.D. v. B.M.D., 356 N.W.2d 813...