Rogers v. Hill , 281 Or. 491 ( 1978 )

LINDE, J.

Defendant Hill, a deputy sheriff in Multnomah County, appeals from a judgment for damages awarded plaintiff Rogers on causes of action for assault and battery and malicious prosecution. The litigation arose from an altercation in the parking lot of the apartments where Rogers resided, when he intervened in an argument between Officer Hill and one Curtis. In the course of events Rogers was allegedly struck by Hill, thereafter arrested, and eventually prosecuted for resisting arrest and acquitted. Rogers subsequently brought the present action against Hill and another deputy sheriff, Stewart, who had transmitted Hill’s written report to the district attorney for prosecution. Plaintiff took a voluntary nonsuit against Stewart. In his action against Hill, the jury returned verdicts for plaintiff on his claims of assault and battery and malicious prosecution and against him on a claim of false arrest.

With respect to the first cause of action, for assault and battery, defendant assigns as error the trial court's instruction to the jury that ~the only evidence in this case is that the defendant did strike the plaintiff," and that this striking was a battery for which defendant would be liable unless the jury found that it was privileged.¹ The evidence to which the trial court referred was the testimony of plaintiff and his wife. It was not contradicted by defendant, who chose not to testify in his own behalf. However, defendant contends that the occurrence of the battery itself was a jury issue because the jury was entitled to disbelieve even the uncontradicted testimony of plaintiff and his wife, especially since they were interested parties.

The question whether and when a jury may be directed to give conclusive effect to the uncontradicted testimony of a proponent of a fact in issue was reviewed by this court in Rickard v. Ellis, 230 Or 46, 368 P2d 396 (1962). The court concluded that it is equally incorrect to state as a general rule that uncontradicted testimony must be taken to prove the fact in issue or, at the other extreme, that the credibility of such testimony is invariably an issue for the jury. Instead, Rickard held that "whether uncontradicted testimony is such as to preclude the jury’s function in testing the credibility of the witness or witnesses who gave it will depend upon the nature of the issue in the particular case which the testimony purports to resolve.” 230 Or at 52. In reaching this conclusion, Justice O’Connell’s opinion quoted from the opinion of Chief Justice Vanderbilt in Ferdinand v. Agricultural Insurance Co., 22 NJ 482, 126 A2d 323, 62 ALR2d 1179 (1956), which had previously been followed in Wiebe v. Seely, Administrator, 215 Or 331, 343-344, 335 P2d 379 (1959):

". . . Where men of reason and fairness may entertain differing views as to the truth of testimony, whether it be uncontradicted, uncontroverted or even undisputed, evidence of such a character is for the jury .... [Citing cases]. But when the testimony of witnesses, interested in the event or otherwise, is clear and convincing, not incredible in the light of general knowledge and common experience, not extraordinary, not contradicted in any way by witnesses or circumstances, and so plain and complete that disbelief of the story could not reasonably arise in the rational process of an [ordinarily] intelligent mind, then a question has been presented for the court to decide and not the jury. . . . [Citing cases].” Rickard v. Ellis, supra, 230 Or at 51.

Credibility, the Ferdinand opinion continued, "is but one of the elements upon which the mind must work in the determination of the final result,” and not inherently beyond determination by the judge when it is not put in doubt. Thus,

where the uncontradicted testimony of a witness, interested or otherwise, is unaffected by any conflicting inferences to be drawn from it and is not improbable, extraordinary or surprising in its nature, or there is no other ground for hesitating to accept it as the truth, there is no reason for denying the verdict dictated by such evidence .... [Citing cases]. 22 NJ at 498, 126 A2d at 332.²

See also Foster v. Agri-Chem, Inc., 235 Or 570, 385 P2d 184 (1963); Palmer v. Van Petten Lbr. Co., 265 Or 347, 509 P2d 420 (1972); Wattenburg v. United Medical Lab., 269 Or 377, 525 P2d 113 (1974).

Although the mere statement that the effect of uncontradicted testimony "will depend upon the nature of the issue in the particular case which the testimony purports to resolve” gives little precise guidance to trial courts or counsel, Rickard itself continued by emphasizing two factors among many that bear on the question: the availability of evidence to contradict the offered testimony and the likelihood that the witness’s interest in the litigation might tempt him to testify falsely.³ They were reiterated in Schmitz v. Yant, 242 Or 308, 317-318, 409 P2d 346 (1965), concerning damages for loss of consortium, which the court considered to involve relations "of so intimate a character” that the credibility of plaintiff’s testimony or that of his or her spouse would almost always be a jury question. Of course, not only self-interest but also the difficulty of obtaining contrary evidence indicated that result. See Streight v. Conroy, 279 Or 289, 566 P2d 1198 (1977), another claim of loss of consortium.

The same factors are pertinent in this case. Whether they were correctly applied is a close question. Necessarily their application in a trial setting involves the exercise of judgment by the trial court, but it is not a matter of discretion. The fact at issue was whether defendant Hill’s hand struck plaintiff Rogers’s face. Plaintiffs testimony was that he grabbed Curtis by the arms to keep him from "trying to get back at the officer.” He continued:

The officer approached Dender Curtis and myself and he took a swing at Dender Curtis while I was hanging onto him. And Dender Curtis ducked down and I got a graze on the face and that’s when I let go.

His testimony continued with additional details. Debra Rogers, plaintiffs wife, testified that she saw defendant swing at Dender Curtis while Rogers was holding Curtis’s arms. "Then Denny ducked and [Hill’s] fist hit Bob.” Defendant’s counsel did not question this part of her testimony on cross-examination. Moreover, he did not call defendant himself as a witness to contradict the Rogerses’ testimony, though the contradiction of the alleged striking, if it did not occur, was not only readily but uniquely available to the defendant.⁴

Nevertheless, we think the jury in this case might have disbelieved plaintiff’s version of the striking if they had been given the opportunity. The acts in issue occurred in a setting of emotional tension after which each participant might recall events in a manner consistent with his or her recollected role. There were differences between officer Hill’s written report and the testimony of Mr. and Mrs. Rogers on other aspects of the episode. It follows that the instruction stated in note 1, above, was error.^4a

The problem of the deputy’s liability for malicious prosecution is more complex. The tort consists in initiating or procuring criminal proceedings, from an improper motive and without probable cause, against another who is not guilty of the offense charged, and who ultimately gains a favorable termination of the proceedings. See, e.g., Rose v. Whitbeck, 277 Or 791, 562 P2d 188 (1977), modified, 278 Or 463, 564 P2d 671 (1977); Shoemaker v. Selnes, 220 Or 573, 349 P2d 473, 87 ALR2d 170 (1960). This conventional listing of the elements described the traditional situation in which a private complainant sets the criminal law in motion against another person and a magistrate, grand jury, or prosecutor acts upon the charge as it is presented by the complainant. But strains appear in the formula when it is applied to an action against one who has official responsibility in the administration of criminal law but not to decide on the prosecution.

In this case, Officer Hill filed a "Crime Report” and two "Custody Reports” following the arrest of Curtis and Rogers and left further steps to others. The Custody Report on Curtis, signed by another officer who had been called to the scene, McDade, listed the charges of "harassment” and "resisting arrest”; Hill’s report on Rogers listed "disorderly conduct.” The Crime Report set forth the officer’s version of the incident in some detail. In a box at the head of the printed form Hill identified the "Type Offense” as "harassment.” The body of the narrative stated that Hill had informed Curtis that he was under arrest for harassment and Rogers that he was under arrest "for his part in interferring with my taking custody of Mr. Curtis,” and that Hill had told McDade that Rogers would be taken in "for the listed charges.” These reports were placed in the work basket of Deputy Stewart, whose assigned task was to transmit such reports to the prosecutor. A deputy district attorney subsequently, upon the information in these reports but without further consultation with Hill, prosecuted Rogers on the charge of "resisting arrest” of which he was acquitted.

Defendant contends that on these facts he was entitled to a directed verdict because he did not initiate the prosecution actually brought. He cites Humbert v. Knutson et al, 224 Or 133, 354 P2d 826 (1960), for the rule that one who merely gives information on which a prosecutor makes an independent decision to charge an offense is not liable for instituting the prosecution. As there quoted from the second edition of Prosser’s Handbook of the Law of Torts, the rule also applies when the authorities prosecute for an offense different from that presented by the private informant.⁵ Id. at 138. For the general rule on prosecutorial discretion, Humbert also quoted the Restatement of Torts, § 653, Comment g (1938).⁶ However, the Restatement quite explicitly deals only with the initiation of criminal proceedings by private informants, and that is also the focus of the other sources discussing this problem.⁷

A law enforcement officer’s role in initiating a prosecution is not identical to that of a private complainant, nor is the measure of his liability the same. Here we must distinguish between the issue of the "initiation” of a prosecution, which is essentially a question of the causal linkage between the defendant’s acts and the start of the criminal process, and the different issue of a police officer’s privilege for official acts which is not enjoyed by a private defendant. The extent of this privilege is unsettled, and since defendant does not invoke such a privilege, we express no view whether it would be available to him here.⁸ But on the issue of "initiation” there can be no doubt that defendant set the criminal law in motion against plaintiff here. The complexity in the case results only from the fact that plaintiff was ultimately, and unsuccessfully, prosecuted on a legally different charge from that stated by defendant.

Even as a participant in the law enforcement process, an officer is no more liable than a private informant for a person’s prosecution on charges quite different from those initiated by the officer. No doubt this measure of his responsibility for the ultimate prosecution may sometimes be difficult.⁹ But it is not difficult in this case. Deputy Hill’s Crime Report, as quoted above, could be read to extend to a possible charge that Rogers participated in resisting Curtis’s arrest as well as to the general charge of "disorderly conduct.” Moreover, Hill was the primary prosecution witness in Rogers’s trial on the charge of resisting arrest and there is no indication that he suggested to the prosecutor that this charge was inappropriate. An active part in continuing an unfounded criminal proceeding is sufficient for this tort. See Restatement of Torts 2d, § 655. Defendant’s motion for a directed verdict was correctly denied.

Defendant’s remaining assignments of error complain that the jury was not instructed on what constitutes resisting arrest, the charge on which plaintiff was prosecuted, as defendant requested.¹⁰ Defendant was entitled to have the jury consider whether plaintiff was in fact guilty of the offense for which he was prosecuted. Plaintiff’s acquittal does not prevent retrial of that issue in the tort case. Shoemaker v. Seines, supra; Restatement of Torts 2d, § 657, Comment a. This requires an instruction describing the charged offense for the jury when an issue of plaintiffs guilt is raised, as well as for the purpose of having the jury assess probable cause. The only instructions relating to this point merely told the jury that plaintiff must establish "that defendant acted without probable cause in initiating or procuring the prosecution of the plaintiff,” and that "probable cause for the commencement of criminal proceedings comprehends the existence of such facts and circumstances which would cause, in a reasonable mind, the honest belief that the person is guilty of the crime charged.” This is too abstract without an explanation of the elements of the crime charged. The failure to explain these elements, when properly requested, was error. The case is remanded for a new trial.

Reversed and remanded.

Bryson, J., concurs in the result.

1 Now, I instruct you that the only evidence in this case is that the defendant did strike the plaintiff and that striking would constitute a battery or, I should say, does constitute a battery, for which the defendant would be liable in damage unless you find that the defendant was privileged to cause the contact.

2 Chief Justice Vanderbilt’s opinion in turn relied extensively on Jerke v. Delmont State Bank, 54 SD 446, 223 NW 585, 72 ALR 7 (1929), and 9 Wigmore on Evidence § 2495, at 305-306 (3d ed 1940).

3 Other distinguishing factors mentioned in discussions of this question include whether there are internal gaps or inconsistencies in the testimony, whether the issue concerns events directly testified to or inferences from those events, whether the events described are unusual or improbable, and whether the testimony involves expert opinion. See Bobbe, The Uncontradicted Testimony of an Interested Witness, 20 Cornell L Q 33 (1934); Brizius, Directed Verdicts on Uncontradicted Testimony, 1959 Trial Law. Guide 65; Note, The Power of the Court To Determine Witness Credibility: A Problem in Directing a Verdict for the Proponent of the Evidence, 107 U Pa L Rev 217 (1958); Annot., 62 ALR2d 1191 (1958).

4 Plaintiff called defendant as an adverse witness but limited his questioning to matters bearing on the causes of action for false arrest and malicious prosecution. In consequence, defendant’s cross-examination by his own counsel was similarly limited.

4a A dissenting opinion states that we should not decide this issue because defendant took no exception to the instruction after it was given. There had, however, been extensive colloquy between defendant’s counsel and the trial judge before the jury was instructed, during which counsel made very clear his objection on the precise point now raised on appeal and the court made it equally clear that he disagreed with this point and would give the instruction despite defendant’s objection.

The purpose of an exception is to let the court know that the party is not persuaded and to let the court take whatever corrective steps are then available. Like most procedural requirements, it is justified as an aid, not as an obstacle, to assuring a correct trial. In this case it is plain that the trial court was fully apprised of defendant’s point and had made up his mind on the issue. Though an exception should properly have been taken, it would have been a mere formality and its omission did not prejudice plaintiff or affect the court’s actions on the point at issue. Furthermore, no contention is made by plaintiff that defendant failed to take a proper exception to the instruction.

5 See W. Prosser, Handbook of the Law of Torts § 119, at 836-837 (4th ed 1971).

6 Both Prosser and the Restatement of Torts 2d, for which he was the Reporter, limit the rule to information actually believed by the informant, on the theory that information known by the giver to be false prevents an intelligent exercise of official discretion. See id. That may be the effect of false information, but, as Professor Lacy pointed out after the decision in Humbert, this is logically independent of the moral quality of the informant’s belief of its truth or falsity. Lacy, Torts — 1960 Oregon Survey, 40 Or L Rev 278, 295 (1961).

7 Restatement of Torts 2d, § 653, refers to a "private person who initiates or procures the institution of criminal proceedings.” Comment g to this section speaks of a "private person who gives to a public official information of another’s supposed criminal misconduct.”

8 The Restatement recognizes an absolute privilege for a public prosecutor, but not for a peace officer who acts on his own initiative, id. § 656 and Comment d, and defendant claims no privilege here. See also Prosser, supra note 6, § 119 at 837-838, and the conflicting view in this court in Watts v. Gerking, 111 Or 641, 222 P 318 (1924), rev’d on rehearing, 228 P 135 (1924). See generally Annot., 28 ALR2d 646 (1953).

9 Prosecution for a lesser included offense, for instance, would seem attributable to the original report. Cf. Frankfurter v. Bryan, 12 Ill App 549 (1882), in which a justice of the peace had issued a "so-called mittimus” for disorderly conduct on a private complainant’s accusation of larceny. The Illinois court said: "Who ever heard of a party being convicted, in any respectable court, of the offense of disorderly conduct, under an indictment for larceny?” and relieved the complainant of liability. Id. at 553. On the other hand, prosecution for an offense more serious than that originally charged, and one more difficult to prove, even if a related one, is less obviously the responsibility of the original informant. Cf. Bennett v. Black, 1 Stew. 494, 496 (Ala 1828).

10 Respondent does not argue that there was no sufficient evidentiary basis for an instruction concerning his guilt or innocence, and we do not consider that question.