Wisniski v. Ong

• Decision Date: 05 June 1963
• Docket Number: No. 7048,7048
• Citation: 382 P.2d 233,94 Ariz. 123
• Parties: Ann Ruth WISNISKI, a widow, Appellant, v. Roland ONG, dba Roland's Market and Luis Meza, Appellees.
• Court: Arizona Supreme Court

Page 233

382 P.2d 233

94 Ariz. 123

Ann Ruth WISNISKI, a widow, Appellant, v. Roland ONG, dba Roland's Market and Luis Meza, Appellees.

No. 7048.

Supreme Court of Arizona, In Banc.

June 5, 1963.

Stephen W. Connors, Phoenix, for appellant.

Charles E. Butler and Thomas Tang, Phoenix, for appellees.

STRUCKMEYER, Justice.

This action was originally commenced in August of 1955 by appellant, Ann Ruth Wisniski, against Roland Ong doing business as Roland's Market, Luis Meza, his employee, and others for false arrest and malicious prosecution. Following a trial and a verdict in favor of appellant, the trial court entered judgment notwithstanding the verdict in favor of appellees. On appeal, Wisniski v Ong, 84 Ariz. 372, 329 P.2d 1097, we said that the evidence while not sufficient to sustain a verdict for false imprisonment under the then existing state of the record was sufficient to sustain a verdict for malicious prosecution. We held that since this Court was unable to determine the basis of the jury's verdict we were compelled to set aside the order for judgment n. o. v. and order a new trial on the allegations of malicious prosecution.

Thereafter, in the trial court the appellant amended her complaint and appellees by their second affirmative defense answered that there was probable cause for the prosecution for the reason that appellant was convicted on the charge of petty theft in the City Court of the City of Phoenix. At the conclusion of appellant's case on retrial the court directed a verdict in favor of appellees. Appellant again appeals to this Court.

In the first appeal appellant assigned as error that the evidence was sufficient to sustain a judgment in malicious prosecution because the facts as to probable cause were in conflict, and that hence probable cause or the want thereof was a jury question citing Murphy v. Russell, 40 Ariz. 109, 9 P.2d 1020. It was not then claimed by appellant that the trial court predicated its judgment n. o. v. on the proposition that probable cause for the prosecution for petty theft was established as a matter of law by the conviction of appellant in the City Court of the City of Phoenix. Nor did the appellees raise the issue in support of the judgment. On the instant appeal the question is directly presented by appellant's assignments of error #1 and #2.

The record discloses that following appellant's arrest the appellee, Luis Meza, swore to a complaint that appellant had taken a certain article known as 'Nature's Remedy Pills' from Roland's Market. Thereafter, appellant was tried in the City Court of the City of Phoenix and convicted. She appealed to the superior court and on trial de novo was found not guilty. These facts establish as a matter of law the existence of probable cause for the prosecution.

'* * * The conviction of the accused by a magistrate or trial court although reversed by an appellate tribunal, conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury or other corrupt means. * * *' Restatement of Torts § 667.

The rule adopted by the Restatement is supported by the great weight of authority, both as to reversals by appellate tribunals and, as here, where the statute gives a trial de novo. Bealmear v. Southern California Edison Co., 22 Cal.2d 337, 139 P.2d 20; Eustace v. Dechter, 53 Cal.App.2d 726, 128 P.2d 367; Dziobecki v. D'Ambrosi, 26 Misc.2d 65, 212 N.Y.S.2d 508; Adams v. Bicknell, 126 Ind. 210, 25 N.E. 804, 22 Am.St.Rep. 576; Vesey v. Connally, 112 Ohio App. 225, 175 N.E.2d 876; Moore v. Michigan National Bank, 368 Mich. 71, 117 N.W.2d 105; Arnold v. Jarvis, 367 Mich. 59, 116 N.W.2d 38; Broussard v. Great Atlantic & Pacific Tea Co., 324 Mass. 323, 86 N.E.2d 439; Topolewski v. Plankinton Packing Co., 143 Wis. 52, 126 N.W. 554; Tarantino v. Griebel, 9 Wis.2d 37, 100 N.W.2d 350, 86 A.L.R.2d 1084; Stebbins v. Wilson, 122 Mont. 186, 199 P.2d 453; Calbeck v. Town of South Pasadena, Florida, (Fla.App.) 128 So.2d 138; Boxer v. Slack, 124 W.Va. 149, 19 S.E.2d 606; Lynn v. Smith (D.C.Pa.) 193 F.Supp. 887; Engleman v. Progressive Machinery Corporation (D.C.Mass.) 156 F. Supp. 46.

The facts of this case do not bring appellant within the exception that probable cause exists 'unless the conviction was obtained by fraud, perjury or other corrupt means.' She offered to prove that at the trial in the City Court the prosecuting attorney stated she was a 'gang moll' and had an F. B. I. record and that such were untrue. But we are satisfied that matters which are errors occurring at a trial, generally subject only to review on direct appeal even if categorically classified as unfair, fair, are not such corrupt means as permit an attack on the conclusive effect of the judgment of conviction. From our examination of the cases 'other corrupt means' are acts of similar nature to extrinsic fraud and perjury, acts which would tend to vitiate a judgment on collateral attack. See cases collated in 86 A.L.R.2d 1090, rule stated 1094, 1095. We have been referred to no precedent where a like or a similar occurrence has been determined to be within the exception recognized by the restatement. Moreover, the cases suggest the view that the fraud, perjury or corrupt means must have been induced by some at or acts of the defendant in the malicious prosecution action.

The judgment of the court below is affirmed.

BERNSTEIN, C. J., UDALL, V. C. J., and T. J. MAHONEY, Superior Court Judge, concur.

NOTE: The Honorable LORNA E. LOCKWOOD, J., being disqualified, the Honorable T. J. MAHONEY, Judge of the Superior Court of Pinal County, was called to sit in her stead.

JENNINGS, Justice (dissenting).

Five years ago this Court considered this same case. We then held that, if the plaintiff's evidence was believed, she had a cause of action for malicious prosecution, Wisniski v. Ong, 84 Ariz. 372, 329 P.2d 1097 (1958). As to some of the elements of her cause of action, that holding meant only that her evidence was sufficient to go to a jury. The element of want of probable cause, however, is a question of law, Sarwark Motor Sales, Inc. v. Woolridge, 88 Ariz. 173, 354 P.2d 34 (1960), and our holding necessarily meant that the evidence viewed most favorably to the plaintiff established want of probable cause as a matter of law.

In the present appeal the plaintiff's evidence is the same as was before us previously. Here, where a verdict was directed against the plaintiff, as there, where judgment n. o. v. was granted against the plaintiff, we must view that evidence in the light most favorable to the plaintiff. In the Matter of the Estate of Mary Emma Stitt, 93 Ariz. 302, 380 P.2d 601 (1963). However, the plaintiff is now told that, although the contention of her opponents five years ago that she failed to show want of probable cause was rejected by us then, and although the fact of her reversed conviction by a magistrate's court appeared of record at that time, somehow the discredited judgment of the magistrate's court overrides the previous judgment of this Court on the question of law as to whether want of probable cause was established. This is so, she is told, because '* * * matters which are errors occurring at a trial, generally subject only to review on direct appeal, even if categorically classified as unfair, are not such corrupt means as permit an attack on the conclusive effect of the judgment of conviction.'

But the plaintiff did undertake a direct appeal of the judgment in the only way provided under our statutes and, in a trial de novo in the superior court, the magistate's judgment was set aside. It cannot have any 'conclusive effect' under the principles of res judicata and collateral estoppel. The reversal wipes out the previous conviction and establishes the innocence of the civil plaintiff:

'If, however, a judgment has been vacated by the trial court or reversed by an appellate court, it is no longer conclusive between the parties, either as a merger of the original cause of action or as a bar to an action upon the original cause of action; nor is it conclusive by way of collateral estoppel in a subsequent action on a different cause of action involving issues litigated in the original action.

'If a different judgment is entered, this judgment is conclusive between the parties. * * *' Restatement, Judgments § 41, comment d In Desmond v. Fawcett, 226 Mass. 100, 115 N.E. 280, L.R.A., 1917D, 408 (1917), a malicious prosecution case, the court said:

'* * * I conviction below is wiped out by the acquittal on appeal so far as the doctrine of res judicata is concerned. A conviction below followed by acquittal above on which final judgment is entered establishes the innocence not the guilt of the prisoner. Under these circumstances it is not necessary to go [further] and point our (in the first place) that the parties to the criminal prosecut...