Welch v. Bergeron

• Decision Date: 30 April 1975
• Docket Number: No. 6702,6702
• Citation: Welch v. Bergeron, 337 A.2d 341, 115 N.H. 179 (N.H. 1975)
• Parties: Harold C. WELCH v. Roland E. BERGERON.
• Court: New Hampshire Supreme Court

Page 341

337 A.2d 341

115 N.H. 179

Harold C. WELCH v.Roland E. BERGERON.

No. 6702.

Supreme Court of New Hampshire.

April 30, 1975.

Winer, Lunch, Pillsbury & Howorth.Nashua (Robert W. Pillsbury, Nashua, orally), for plaintiff.

Leo R. Lesieur, Nashua, by brief and orally, for defendant.

KENISON, Chief Justice.

Plaintiff brought an action to recover damages for false imprisonment and malicious prosecution resulting from a criminal complaint against him signed by defendant in 1971.Trial by jury resulted in a verdict for defendant.Mullavey, J., reserved and transferred plaintiff's exceptions to various rulings of the trial court.The questions in this appeal are whether the trial court erred in dismissing the count for false arrest, in making certain evidentiary rulings and in failing to give several jury instructions.

Since 1960defendant, Roland E. Bergeron, has been a part-time building inspector for the town of Litchfield, New Hampshire.For about twenty years plaintiff, Harold C. Welch, has been a builder of homes in the vicinity of Nashua, New Hampshire, including the town of Litchfield.In the course of pursuing their respective professions, plaintiff and defendant have had several less than amicable contacts.

In the evening of April 14, 1969, a dispute developed between Welch and Bergeron concerning the issuance of a building permit during which Welch became irate, calling Bergeron a 'son of a bitch' and threatening to 'get (him) one way or another.'Later that night Bergeron returned to his car to find that the mouth of his gas tank had been plugged with cement.During a dispute over the suitability of a septic system on August 1, Welch became angry again, threatening that he was 'going to make arrangements to have (Bergeron) taken care of.'

At about 1 a.m. on August 13, 1969, flammable liquid in a glass container was thrown through a window of Bergeron's home on Route 3-A in Litchfield.Although defendant saw a car drive away, he was unable to identify either the car or the driver.That night at about 6 p.m., Bergeron received an anonymous telephone call, telling him to '(l)ay off builders.Next time it will be a bomb.'In September and November, Bergeron and his family received additional anonymous, threatening calls.

More than one year later in September 1970, a former employee of Welch, Jules Champagne, told Bergeron that Welch had offered him $200 to harm Bergeron's person or damage his dwelling house.Acting on the advice of his attorney, defendant spoke with an assistant attorney general on September 16.Although Bergeron had not requested a complaint to be drawn, he signed a complaint for Welch's arrest at the Nashua District Court on June 24, 1971.

Pursuant to the complaint Welch was arrested for attempted arson in June 1971 and was incarcerated for about three hours.At a preliminary hearing at the Nashua District Court on July 15, no probable cause was found.As a result of a grand jury indictment for attempted arson in September 1971, Welch was tried in Hillsborough County Superior Court, but the action was dismissed at the end of the State's case.

I.Dismissal of the Count for False Imprisonment

Plaintiff argues that the trial court erred in dismissing the count for false imprisonment.False imprisonment has been defined as the unlawful restraint of an individual's personal freedom.W. Prosser, Torts§ 11, at 42(1971);Hickox v. J. B. Morin Agency, Inc., 110 N.H. 438, 442, 272 A.2d 321, 323(1970);1 F. Wharton, Criminal Law and Procedure§ 385, at 750(R. Andersoned. 1957).An essential element of the offense is the absence of valid legal authority for the restraint imposed.W. Prossersupra;4 F. Wharton, Criminal Law and Procedure§ 1585, at 229(R. Andersoned. 1957).

It is the plaintiff's position that his arrest in June 1971 lacked valid legal authority because the complaint was rendered void on its face by its failure to state facts sufficient to constitute the offense of attempted arson.See4 F. Wharton, Criminal Law and Procedure§ 1586, at 231(R. Andersoned. 1957).The criminal complaint alleged in part that defendant'did hire a person or persons unknown to willfully and maliciously set fire to the dwelling house of one Roland Bergeron for a sum of money, that as a result thereof a flammable liquid in a glass container was thrown through a window of Bergeron's dwelling house . . ..'The trial court correctly dismissed the count for false imprisonment since the complaint was valid under the relevant statutes applicable at the time when the offense was committed.Laws 1942, 459:7 (RSA 590:7, repealed November 1, 1973);seeRSA 629:1, subd. I; RL 96:1 (RSA 584:1, superseded byRSA 634:1, subd. I, November 1, 1973);seeState v. Inselburg, 114 N.H. 824, 827, 330 A.2d 457, 460(1974);Hickox v. J. B. Morin Agency, Inc., 110 N.H. 438, 442-43, 272 A.2d 321, 324(1970).

II.Evidentiary Rulings

Plaintiff further maintains that the trial court erred in admitting allegedly irrelevant testimony by the defendant that the mouth of his car's gas tank was filled with cement on April 14, 1969, and that he received anonymous, threatening telephone calls in August.To be admissible into evidence testimony must have some tendency to establish a fact of consequence to the determination of the action.J. McCormick, Evidence§ 185, at 437(E. Clearyed. 1972);1 J. Wigmore, Evidence§ 9, at 289(1940);seeFed.R.Evid. 401, 402;James, Relevancy, Probability and the Law, 29 Calif.L.Rev. 689, 690-91(1941).

In an action for malicious prosecution an element essential to a resolution of the case is a showing that the criminal proceeding was initiated by the defendant without probable cause.W. Prosser, Torts§ 119, at 841(1971);MacRae v. Brant, 108 N.H. 177, 180, 230 A.2d 753, 755(1967);1 F. Harper and F. James, Law of Torts§ 4.5, at 311(1956).In light of the repeated threats made by the plaintiff against the defendant in April and in August 1969, Bergeron's testimony regarding events that happened to him during that period was relevant to his reasonable belief in Welch's guilt, and, therefore, the trial court did not err in admitting it.Id.;seeCohn v. Saidel, 71 N.H. 558, 561, 53 A. 800, 803(1902).

Plaintiff also contends that evidence regarding who prepared the complaint signed by the defendant should have been excluded by the trial court since it was immaterial.Materiality is a necessary aspect of relevancy: evidence offered to prove a fact that is not in issue is immaterial.J. McCormick, Evidence§ 185, at 434(E. Clearyed. 1972);seeJames, Relevancy, Probability and the Law, 29 Calif.L.Rev. 689, 690-91(1941).To succeed in his action for malicious prosecution, plaintiff had the burden of proving that defendant instituted the criminal proceeding 'maliciously'.Robinson v. Fimbel Door Co., 113 N.H. 348, 350, 306 A.2d 768, 769(1973);W. Prosser, Torts§ 119, at 847(1971);1 F. Harper and F. James, Law of Torts§ 4.6, at 320(1956).Testimony that the defendant did not ask the attorney general's office to prepare the complaint against plaintiff was material to the jury's determination whether the defendant acted with malice.W. Prosser, supra at 848;F. Harper and F. James, supra at 322-23.

In addition, the plaintiff claims that the trial court erred in excluding evidence that the charge of attempted arson against him was dismissed at the end of the State's case in the superior court.Since the trial court grounded its decision on the fifth stipulation of the pretrial order which stated that 'plaintiff's claim . . . is not based on the fact that the indictment in the superior court was dismissed at the conclusion of the prosecution's case', there was no error in the exclusion.RSA 491:App.R. 59(a)(3), (b)(Supp.1973);seeFed.R.Civ.P. 16(3);3 J. Moore, Federal Practice§ 16.19, at 1130(1974)(Supp.1975, at 104);M. Rosenberg, The Pretrial Conference and Effective Justice 8 (1964).

III.Failure to Give Requested Jury Instructions...