Minard v. Boss Hotels Co. , 241 Iowa 606 ( 1949 )

I respectfully dissent.

The action was at law and for malicious prosecution. When both sides rested the court sustained a motion for a directed verdict made by the defendant, sustaining it on the sole ground that the plaintiff's evidence failed to show that the prosecution was instigated by the defendants. In so ruling the lower court held that as a matter of law plaintiff, in that particular, had not made out a case sufficient to warrant a submission to the jury. The court stated that it was not necessary to pass upon the other grounds of the motion. The issue thus raised depends upon the facts and in passing thereon the evidence must be viewed in the light most favorable to appellant. Many cases might be cited to sustain that rule. The late case of Lawson v. Fordyce, 234 Iowa 632, 12 N.W.2d 301, reaffirms that rule and cites many cases supporting it.

As I study the majority opinion in the light of the record its effect will be as follows: A peaceable and law-abiding citizen, one with a family, who served his country for over three years in the late war and who still suffers from disabilities incurred therein, who was honorably discharged, who shortly after his return to the United States was given a responsible position in the United States Employment Service (USES), who worked there without criticism or complaint, who, while so employed, was falsely and publicly accused of the specific crime of obtaining money under false pretenses, was arrested and incarcerated for a period of nine days, was humiliated and embarrassed by being taken in public, handcuffed, was indicted upon said charge, was later released upon bond and who expended approximately $450 in proving his innocence, who was not tried, and the charges were dismissed after the authorities became convinced of his innocence, the reason given being "mistaken identity", is entitled to sympathy and nothing by way of damages.

The essence of the holding in the majority opinion is set forth in the concluding paragraph thereof:

"We realize that, as a general rule, the question of the defendant being the real prosecutor is one for the jury. We also recognize the fact that the question before us is not whether they did instigate the prosecution, but whether there is sufficient evidence in this record to warrant a jury in so finding. We are satisfied that under this record the trial court was correct in directing a verdict for the appellees, and that the judgment of the trial court should be affirmed."

The majority opinion sets forth many of the facts involved as shown by the record. For the most part they are substantially as there set forth. We disagree, however, with the conclusions which the majority opinion has reached in considering them.

From the evidence set forth in the record it is crystal clear that the authorities, state and Federal, knew of various similar crimes being committed prior to, at, and after the particular one for which appellant was charged; they knew of appellant and his employment; they knew that months before his arrest various instruments of credit, checks, drafts, and money orders had been stolen from the mailboxes and that such were altered by changing the name of the payee, or forging endorsements, and that when appellant was arrested the authorities had at least ten such instruments in their possession in all of which appellant's name "William C. Minard" had been either unlawfully inserted or had been forged, or both. The first check bearing appellant's forged endorsement was cashed in September 1945, and the postal authorities knew of this shortly thereafter. For the most part the crimes followed a similar pattern — checks and drafts stolen, altered, names changed and forged, and then cashed at various places in Des Moines. Both the Federal and state officers long knew of such conditions — knew that William C. Minard was an individual, his employment, his residence. Such officers cooperated in their work and were in almost daily contact. The FBI had interviewed appellant and made a report to the Federal Postal Inspector, C.P. Donovan. Donovan had made inquiries as to the habits and surroundings of appellant, and in fact made a sort of personal surveillance of him. During the time Donovan was investigating the matter he had appellant shadowed or followed for about a year and a half to see whether or not he was the man who was robbing the mailboxes. He communicated with the deputy assistant district attorney and apprised him of the facts. Donovan had an opinion from a handwriting expert that the endorsements of the various instruments, with one exception, were similar to the specimens of appellant's handwriting secured from the USES. Donovan, as a part of his investigation of appellant, called upon Mr. Hagadorn, manager of the USES and obtained from him a specimen of appellant's handwriting and a list of absences from his work. Donovan stated there was no similarity between the signatures on the other instruments bearing the forged signatures of appellant and that on the Toom check. The list of absences shows that appellant was absent from his employment nine times from September 24 to December 24, 1945. These absences, with one exception, failed to coincide with the dates of the theft of the checks which bore the forged endorsement of appellant. The Toom check, being the one cashed at the Savery Hotel on December 20, had been returned and the authorities had knowledge thereof.

I will now set out from the record facts appearing therein which I think unerringly point to appellees as being the instigators of the arrest and prosecution of appellant.

The Toom check for $50 was stolen from the Brady Apartments on December 19, 1945. It had been mailed from Pella, Iowa, and it was payable to Mary Jane Toom. This check, with the name of the payee changed to William C. Minard, was on December 20, 1945 presented to the assistant manager of the Savery Hotel, one Arthur Johnston, who O.K.'d it, after which it was cashed by the hotel. The person presenting it was a stranger to Johnston. Some days thereafter this check was returned by the bank on which it was drawn, and the manager of the hotel, J.E. Whalen, and Arthur Johnston were advised that payment had been refused on account of the forgery. The bank charged the check back against the hotel account on December 27, 1945. The hotel management rather reluctantly took up the discredited check. The hotel employees called this to the attention of Detectives Dawson and Fitzgerald of the city of Des Moines, both of whom were daily in consultation with Inspector Donovan. These two officers worked for the most part in running down crimes along similar lines — the uttering of forged and altered instruments. Donovan later called at the hotel and conferred with Whalen and Johnston about the Toom check. While Johnston proceeded to the USES, taking the check with him for the purpose of identifying appellant as the one who had induced him to cash the Toom check, Donovan stayed at the hotel. Johnston's trip immediately followed his conference with Donovan. He arrived there and says that he pointed out appellant as the man who had presented the check. Appellant's testimony as to what happened at such time is in sharp conflict with that given by Johnston. Johnston said that he picked appellant out without the aid of anyone; appellant said that someone called his name and then Johnston came to him and told him he wanted to talk to him. Appellant said that there were a lot of people about and he went to an office where he and Johnston could be by themselves; that Johnston showed him the check and the affidavit attached, "He said, `I want my $50.00.' I said, `I think you are wrong, the FBI knows all about this, and they are on the case.' And he said, `No, you are the boy.' He said, `You show me your Masonic card', which I did not carry because I didn't have one, and he said, `You show me your discharge.' Well, I never carry my discharge with me, and he said, `Well, you are the one, all right.' And I said, `I am sorry about the whole thing, but they know all about it.' So we walked downstairs and I said that I believed that I had lost my discharge, and that is when he made the remark it was an original discharge, and I told him that was a lie because my original discharge had never been out of the house, only on several occasions, and this certainly wasn't one. So his parting message was, `I am not going to pay for this, by Godsomeone is,' and that is the last I saw of the gentleman." (Italics supplied.)

The record shows that Donovan was waiting at the Savery Hotel office and talked with Whalen and Johnston before the latter went to the USES to identify appellant as the man who had cashed the Toom check; that they talked about it, and Minard; that later Johnston phoned and talked to both Whalen and Donovan and told them, "The man is here." Later he returned and again talked to Donovan. Johnston told Donovan that appellant was the man who had cashed the Toom check at the Savery Hotel. Johnston did not tell Donovan that the apparent failure of appellant to produce his Masonic card (receipt) and his discharge papers was what convinced him as to the identity. Neither did he tell him that appellant in no way resembled the stranger who had presented the check. That afternoon Donovan went to the USES and took appellant into custody and had him placed in jail and on the following morning filed a charge in the Municipal Court of Des Moines for obtaining money under false pretenses. He offers a rather lame explanation for such act by saying that in so doing he was "hornswoggled." The record shows that appellant was incarcerated approximately nine days and was later released on bond, was indicted on the charge made by Donovan, which charge was dismissed on February 15, 1946. Federal indictments based upon information given by Donovan were dismissed by the United States district attorney on November 21, 1946.

I think that the jury could find from the evidence that Johnston's action in identifying Minard, appellant, set in motion the arrest and charge. For months Donovan and the police detectives had known of the existence of appellant and his employment, his residence, and that numerous instruments, checks, etc. had been cashed where appellant's name had been inserted and endorsed in his name. To me it is clear that all that was wanting and what they were waiting for was someone to identify the culprit. Whether or not Johnston had acted in good faith in making the investigation would call for a consideration of the facts and circumstances existing at that time. Johnston had never seen appellant before he met him at the USES. The individual who presented and cashed the check bore no resemblance to appellant. Johnston O.K.'d checks many times, and he stated that he remembers various details — a ring, type of clothing, etc. When he talked with appellant he asked about a Masonic card, and discharge papers, certainly matters which would have little to do with identification. Asking for the card and the discharge papers certainly would warrant the inference that he was not at all sure of his identification. While the explanation given by appellant as to said card and papers was reasonable, still to Johnston they were unsatisfactory. He made no effort to inquire as to appellant and his record or anything about him. The fact that he took the check with him would throw light on his attitude, his purpose and his good faith. For the purpose of identification that check was not necessary. All concede that the handwriting of the endorsement thereon, purporting to be that of appellant, had no similarity to his true signature.

The evidence shows that Johnston put his finger on appellant and identified him as the man who cashed the check, with a basis of nothing tangible or reliable — in other words, the jury could properly find that his actions in so doing were highly reckless and malicious. I think that they could properly find that his main motive was to avoid being called upon to make good the $50. There was evidence that his opening words to appellant were, "I want my $50.00", and he closed the interview by saying to appellant, "I am not going to pay for this, by God someone is."

The principal matter in dispute is whether or not there was sufficient evidence to show that appellee instigated the charge against appellant. The burden would be upon appellant to so show. Dugan v. Midwest Cap Co., 213 Iowa 751, 239 N.W. 697; Holden v. Merritt, 92 Iowa 707, 61 N.W. 390. Appellee argues that all he did was furnish information to the prosecuting officers and that at the request of Inspector Donovan he identified the appellant as the party who cashed the Toom check, and that what he did was not of his own initiative but was at the request and direction of the officers. Donovan finally admitted, after giving a lot of evasive answers, that it was the identification made by Johnston which caused him to act. He did say that while the attitude and conduct of appellant did not satisfy him, still he would not have proceeded as he did without Johnston's identification. This court has passed upon such a claim in its decisions. Holden v. Merritt, supra. In Bair v. Shoultz, 233 Iowa 980, 982,7 N.W.2d 904, 905, the court said: "The machinery of the criminal law started when the defendant told his story to the county attorney." In Holden v. Merritt, supra, 92 Iowa at page 709, 61 N.W., page 391, this court, speaking through Justice Deemer, said:

"It need not be shown that the defendant ordered or directed the warrant or process to issue, or that he participated in its execution. If he, on his own motion, gave information or made complaint to the officers of the law in such a manner as that, in the regular and ordinary course of events, an arrest must be made, or will probably follow, this is sufficient to warrant the jury in finding him the real prosecutor."

We have set out in many cases the essential elements of the action for malicious prosecution. Included therein is that the same was begun on the instigation or pronouncement of the defendant. In support of this rule see Bair v. Shoultz, supra; Richmond v. Whitaker, 218 Iowa 606, 255 N.W. 681. In the case last-cited this court approved an instruction which set out to the jury the necessary elements to be shown in such an action. So far as we have been able to find, the holding of this court in Holden v. Merritt, supra, is still the law of Iowa, and the reasoning therein has not been criticized by any decision of this court.

In 54 C.J.S., Malicious Prosecution, section 14, page 966, the general rule stated is that the "defendant must have been the proximate and efficient cause of maliciously putting the law in motion in the original proceeding." In the case of Hughes v. Van Bruggen, 44 N. Mex. 534, 538, 105 P.2d 494, 497, there is set forth the following:

"In order to charge a private person with responsibility for the initiating of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated expressed by direction, request, or pressure of any kind was the determining factor in the official's decision to commence the prosecution or that the information furnished by him upon which official acted was known to be false."

The above was set forth in Restatement of the Law, Torts, section 653, comment g.

Donovan, the official who filed the charge against appellant, says that the information which Johnston gave him was the thing which induced his actions; that prior to that time he was not satisfied as to the conduct of appellant, but that he would not have moved on that alone. Johnston's "This is your man" set him into action.

Appellees cite, in support of the ruling of the trial court, Dickson v. Young, 208 Iowa 1, 221 N.W. 820. There the evidence showed and this court found that the prosecution was begun by the United States district attorney upon his own investigation and not by the defendant therein. Appellee further argues that in making the identification he acted on the direction of the officers of the law. The arrest was conceded. The dispute was as to whether or not Johnston was the instigator. This being a matter in dispute raises a fact question — one for the jury.

Appellee argues that as the prosecution was begun by Assistant United States Attorney Level, upon information furnished him by Inspector Donovan, consequently appellant could not claim that it was Donovan or Johnston who started the prosecution. That these two were working together cannot be denied — Donovan to catch the mailbox thief, and Johnston to avoid being called upon to make good the $50 check. The record shows that Donovan signed the information in the municipal court, which charged appellant with the crime of obtaining money by false pretenses, certainly not a Federal offense. As heretofore stated, he said that in signing that charge he was "hornswoggled" — a somewhat lame and unsatisfactory explanation for one who was filling the responsible position of Federal postal inspector. Johnston had cashed a forged check and Donovan knew this; Johnston in his zeal to save the $50 pointed his finger at appellant, and Donovan went into action at once. Donovan says that it was Johnston's identification which got him into action.

After evasion and equivocation covering approximately eight pages of record in the cross-examination of Donovan, we find the following: "Q. The only evidence you had of his guilt of the crime with which he was charged in that information was the information given you by Johnston; will you please answer that question? A. That is right." From this very answer a jury could fairly infer that it was Johnston working with and through Donovan who set in motion the machinery of the law.

There is other evidence in the record which a jury might properly consider in passing upon the fact question as to whether Johnston by his identification instigated the prosecution. It is my judgment that the facts as set out in the late case of Schnathorst v. Williams, 240 Iowa 561,36 N.W.2d 739, were not as strong in favor of the plaintiff as in the instant case. In that case the defendant first consulted the county attorney and claimed that he made a full and complete disclosure of the facts, and an arrest followed. This court held it was a question for the jury. For other Iowa cases in this connection see Wilson v. Thurlow, 156 Iowa 656, 137 N.W. 956; Drake v. Keeling, Iowa, 287 N.W. 596; Halligan v. Lone Tree Farmers Exchange, 230 Iowa 1277, 300 N.W. 551; Johnson v. Miller, 82 Iowa 693, 47 N.W. 903, 48 N.W. 1081, 31 Am. St. Rep. 514. See also 34 Am. Jur., Malicious Prosecution, section 162; Davis v. McMillan,142 Mich. 391, 105 N.W. 862, 3 L.R.A., N.S., 928, 113 Am. St. Rep. 585, 7 Ann. Cas. 854.

I would reverse.

OLIVER, GARFIELD and BLISS, JJ., join in this dissent.