Vander Linden v. Crews, 2--57076

• Citation: 231 N.W.2d 904
• Decision Date: 31 July 1975
• Docket Number: No. 2--57076,2--57076
• Parties: Kenneth E. VANDER LINDEN, Appellee, v. Paul CREWS, Appellant.
• Court: United States State Supreme Court of Iowa

Page 904

231 N.W.2d 904

Kenneth E. VANDER LINDEN, Appellee, v. Paul CREWS, Appellant.

No. 2--57076.

Supreme Court of Iowa.

July 31, 1975.

Richard C. Turner, Atty. Gen., and Fred M. Haskins, Asst. Atty. Gen., Des Moines, for appellant.

Bert A. Bandstra, Knoxville, for appellee.

Considered en banc.

REES, Justice.

Defendant appeals from judgment entered on a jury verdict awarding plaintiff damages in an action for malicious prosecution. We reverse and remand for vacation of judgment only.

Plaintiff initiated the within action against defendant Crews, secretary of the Iowa Board of Pharmacy Examiners, Dwight William Snyder (also known in the record as Joe Snyder), and Bill McGill, alleging the defendants had falsely, maliciously and without probable cause, caused him to be arrested, imprisoned and prosecuted for selling stimulant drugs without a prescription. The arrest and prosecution of which plaintiff complained took place in 1969--1970. On October 19, 1969 defendant Crews in his capacity as director of drug law enforcement for the State Board of Pharmacy Examiners, caused plaintiff to be arrested following an investigation which allegedly disclosed a purchase of stimulant drugs from plaintiff by Snyder, who was purportedly acting as an undercover agent for the State. Plaintiff was subsequently indicted for the crime of selling stimulant drugs without a prescription in violation of chapter 189, Acts of the 62nd General Assembly (later codified as chapter 204A, The Code, 1971). He pleaded not guilty to the charge, was tried to a jury and acquitted.

In the early stages of plaintiff's action for malicious prosecution, defendant Crews moved for summary judgment on the grounds he was a public official and immune from suit under the doctrine of judicial immunity. Trial court sustained Crews' motion for summary judgment, holding Crews was a public official and immune from suit where he acted within the scope of his official duties. Plaintiff appealed and we reversed the trial court, holding 'the doctrine of judicial immunity shall not be further extended to protect and shield nonjudicial officers from civil suits where actual malice is alleged'. Vander Linden v. Crews, 205 N.W.2d 686, 691 (Iowa 1973).

Following our decision in Vander Linden I, the instant action proceeded to trial to a jury which returned a verdict in favor of plaintiff and awarded him damages in the amount of $3155.90 against defendant Crews and $3155.91 against defendant Snyder. No mention was made in the verdict of defendant McGill, who for reasons not clear from the record was dropped as a party defendant to the action when this case went to trial following our decision in Vander Linden I. Trial court subsequently entered judgment against both defendants Crews and Snyder and each of them for the total amount of the verdict, $6,311.81. It is from that judgment defendant Crews (but not Snyder) appeals here.

A number of issues are presented for review in this appeal. We consider only those issues deriving from defendant's contentions:

(a) trial court erred in overruling his motion for directed verdict on the grounds lack of actual malice existed as a matter of law with respect to his part in the arrest and prosecution of plaintiff.

(b) trial court erred in instructing the jury that malice does not necessarily presuppose personal hatred, ill-will or revenge, and that malice can be inferred from a lack of probable cause where defendant is a public official.

(c) trial court erred in permitting plaintiff's wife to testify as to mental anguish she and her daughter suffered because of plaintiff's arrest.

I. The elements necessary to support a cause of action for malicious prosecution are:

1) a previous prosecution.

2) instigation or procurement thereof by defendant.

3) termination of the prosecution by an acquittal or discharge of plaintiff.

4) what of probable cause.

5) malice in bringing the prosecution on the part of the defendant.

Liberty Loan Corp. of Des Moines v. Williams, 201 N.W.2d 462, 466 (Iowa 1972); Lukecart v. Swift & Co., 256 Iowa 1268, 130 N.W.2d 716, 722; White v. International Textbook Co., 156 Iowa 210, 136 N.W. 121.

The first issue presented for review in this appeal derives from defendant's contention plaintiff presented no evidence tending to establish the existence of malice on his part in causing the arrest and prosecution of which plaintiff complains and that trial court erred in failing to direct a verdict for defendant on grounds lack of actual malice existed as a matter of law.

What showing must be made to establish malice in an action for malicious prosecution depends on the status of the defendant. We have held in reviewing appeals from actions for malicious prosecution involving defendants who were not public officials that there is no burden on plaintiff to show ill-will, hatred or express malice on the part of the defendant, and that malice may be inferred from a lack of probable cause. See Schnathorst v. Williams (240 Iowa 561, 36 N.W.2d 739), Supra, at pp. 746--747 of 36 N.W.2d; Lukecart v. Swift & Co., supra. In Vander Linden I, we suggested a different standard of malice would apply when the defendant is a public official, holding that such a defendant would not be immune from suit 'where actual malice is alleged'.

Actual malice is synonymous with express malice, which has been defined as 'malice in fact, ill-will, or wrongful motive . . .' Black's Law Dictionary, 4th Ed., 1968, p. 1109. See Giltner v. Stark, 219 N.W.2d 700, 708 (Iowa 1974). The element of actual malice essential to an action for malicious prosecution involving a defendant who is a public official cannot simply be inferred from a lack of probable cause, but must be the subject of an affirmative showing defendant's instigation of criminal proceedings against plaintiff was Primarily inspired by ill-will,...