Noll v. Wilson ( 1934 )

Error is prosecuted to a judgment of the Court of Common Pleas of Hamilton county in favor of the plaintiff in that court, Betty Blanche Wilson, who sued the plaintiffs in error, Louis Noll and William Weisharr, police officers of the city of Cincinnati, for false imprisonment and malicious prosecution.

The answer stated that the arrest and prosecution were made "without malice and upon reasonable and probable cause," and while the officers making said arrest were in the performance of their duties as police officers.

The defendant in error, on Sunday evening, August 14, 1932, was observed by above-named officers to stop on one of the main streets of the city of Cincinnati and to speak to a man in a parked automobile bearing a foreign license; and a little farther down the street was seen to address a second man, with whom she walked and talked until approached by the officers. This last man was much older than defendant in error, said he had been her former neighbor, but could not remember her last name. There is a conflict in the evidence as to whether the defendant in error first spoke to the man or was accosted.

The defendant in error was accused of being a common prostitute, although she gave her home address and begged the officers to go to her home and make an investigation. The officers, however, claim she gave a number of addresses.

They refused to take her home, but took her to a police station and registered her, and then took her home and ordered her to report the following morning, at which time she was tried upon the affidavit filed by the officers charging her with being a common prostitute. She was acquitted.

The officers admitted that the defendant in error was wholly unknown to them, and that they had no knowledge of her character or reputation, one way or another.

The plaintiffs in error sought to introduce by way of defense, and as reflecting upon her character, the petition, answer and cross-petition, and decree in a divorce action. It was alleged by her husband in such action that she was guilty of gross neglect of duty, in that she consorted with other men and neglected her household duties. The decree was granted the husband upon the charge of gross neglect of duty in accordance with the allegations of the petition.

There was no evidence that any one had heard of these proceedings or been influenced thereby in their appraisal of the reputation of defendant in error, so that the evidence, if admissible, was necessarily confined to its effect upon an evaluation of the character of defendant in error. The evidence was excluded. This is assigned as an error.

In her first cause of action plaintiff alleges that the arrest caused her "great humiliation, distress, and mental suffering," and in her second cause of action alleges that the "malicious prosecution" "greatly injured her social standing and reputation," "caused her to suffer great mental agony and worry," and that this caused her to be nervous and sick permanently.

The character and reputation of the defendant in error was a direct issue in the case. It was presumed to be good. Evidence could have been introduced to show that it was not such, and her humiliation, distress and mental suffering, mental agony and worry, would have been consequently less, and therefore her damages would be affected accordingly.

The usual method of proving character, good or bad, is by the testimony of witnesses who know the subject and are able from such knowledge to say that in their opinion the character is good or bad. These witnesses are subject to cross-examination. The plaintiffs in error sought to prove character by the decree and pleadings in the divorce proceeding. The effect of such effort, if successful, would be to deprive the defendant in error of any privilege of cross-examining the witnesses upon whose testimony the decree was given. We have been cited to no authority in which a decree or judgment in a civil action has been considered as competent evidence to prove an issue involved in the case in which such decree or judgment is sought to be introduced as evidence, nor do we find any such authority, but, on the contrary, we find what we consider conclusive authority to the contrary.

In the case of Chantangco v. Abaroa, 218 U.S. 476,31 S. Ct., 34, 54 L. Ed., 1116, it is stated in the syllabus: "The general rule of the common law is that a judgment in a criminal proceeding cannot be read in evidence in a civil action to establish any fact there determined. The parties are not the same and different rules of evidence are applicable."

If the judgment in a criminal case, requiring proof beyond a reasonable doubt, is not admissible, certainly the judgment in a civil action would not be. It is true that the judgment sought to be introduced in the federal case was one of acquittal, but we think this is not the basis for the rule, as is evidenced inFleischmann Malting Co. v. Mrkacek (C.C.A.), 14 F.2d 602,604, where the judgment was one of conviction.

The issue in the divorce proceeding was that of gross neglect of duty. No such issue is herein involved. The decree cannot take the place of character witnesses. It is also well understood to be the law that specific instances of improper conduct may not be put in evidence as indicative of bad character. What is the effect of the judgment of divorce other than a specific instance of improper conduct? Testimony of character and reputation must be limited to a period reasonably close to the time involved. In the instant case the decree was entered April 11, 1930; the arrest took place on August 14, 1932; and the trial of the case was held February 28, 1933.

The evidence of the decree and pleadings in the divorce action were properly excluded.

Plaintiffs in error also find fault with the general charge, concerning which there was no request for amplification or addition. We find the charge to be free from affirmative error. The omissions claimed were not such as to affect the charge given to such an extent as to mislead the jury.

No error, prejudicial to the plaintiffs in error, being found in the record, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

HAMILTON, P.J., and CUSHING, J., concur.