Dubreuil v. Pinnick

DISSENTING OPINION

Young, J.

I dissent. Neither the claim for false imprisonment nor that for malicious prosecution is supported by sufficient evidence. Ind. Rules of Procedure, Trial Rule 59(A)(4). For this reason judgment should be entered for the defendants. Alternatively, I would reverse nonetheless for the reason that the award of damages is not supported by sufficient evidence.

The testimony of the witnesses is unfortunately vague with respect to many of the circumstances giving rise to this action. Keeping -this in mind, and considering the evidence in a light most favorable to the appellee, the record discloses the following information. This lawsuit was generated by a church feud. Plaintiff Trevor Pinnick, the minister, was at the center of the dispute. There is repeated testimony in the record that Pinnick and others carried on the controversy with swearing, shouting, and shoving. During one argument, defendant DuBreuil’s husband sought to remove Pinnick from the church building by force.

In order to forestall a similar disturbance at a congregational meeting, defendant DuBreuil initiated a proceeding for surety of the peace. IC 1971,35-1-5-1 (Burns Code Ed.). DuBreuil had consulted an attorney for *534advice on this procedure. DuBreuil’s goal was to prevent Pinnick from attending the church meeting of September 8,1974. Defendant DuBreuil executed the necessary affidavit to initiate the proceeding. See IC 35-1-5-1, supra. In the affidavit she stated that

“Trevor Pinnick may cause some disturbance to people in and near the plaintiffs in a manner so as to cause some one or more people mental or bodily injury, and request an order for the said defendant to keep off the premises of the said church on the date of Sunday, September 8th, 1974.”

A copy of the affidavit was sent to Pinnick by the attorney. However, no other steps were taken prior to September 8,1974, to complete the surety proceeding.

On September 8, Preacher Pinnick appeared at the church. Defendant Wilson, apparently under the impression that the surety proceeding had been completed, warned Pinnick that he would be arrested. When Pinnick did not leave, Wilson secured a copy of the affidavit and gave it to a law officer.

For reasons not apparent in the record, the officer misapprehended the legal import of the affidavit. He erroneously believed that the affidavit, by itself, was sufficient justification to arrest Pinnick. Pinnick was therefore escorted from the church by the officer and placed in jail for forty-eight minutes. This detention was the alleged false imprisonment.

I would refuse to impose liability for the detention upon Wilson. The only reasonable conclusion based upon the evidence is that Wilson wanted to impose upon Pinnick no sanction other than that which could be secured by due course of law. Any “ ‘request’ ” to the officer must be viewed in this context. The circumstances of this incident establish that the decision of the officer to arrest Pinnick carried with it Wilson’s belief that such arrest would be made only if the arrest could lawfully be carried out. Her effort in this regard was thwarted solely because the law officer, from whom she sought assistance, misapprehended the affidavit. This error was his not hers. For the reasons given below, the default of this law officer should not be visited upon the defendants.

The majority opinion quotes a portion of Wilson’s testimony and concludes that on the basis of the testimony a jury could reasonably infer *535that Wilson “ ‘requested’ ” the arrest of Pinnick. I disagree. By resorting to an asserted inference, the majority concede that there is no direct evidence that Wilson requested any arrest. Moreover, the inferred request is questionable because Wilson testified that, “I don’t know who” arrested Pinnick. The asserted inference is also weakened because the existence of the fact sought to be inferred (i.e., that Wilson requested Pinnick’s arrest) could so easily have been resolved by a simple, direct question from Pinnick’s attorney to Wilson. In short, the inference is suspect because Pinnick’s attorney sidestepped an easy opportunity to elicit strong evidence. “The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse.” Interstate Circuit, Inc. v. United States (1939), 306 U.S. 208, 226. Furthermore, the majority recognizes that the asserted inference may only rest on the “course of conduct” of Wilson. What conduct?

A reasonable inference is one which is probably right. Puckett v. McKinney (1978), 175 Ind.App. 673, 373 N.E.2d 909, 912. The asserted inference, that Wilson requested Pinnick’s arrest, can be drawn only by disregarding the uncontradicted and direct evidence that Wilson did not even know who arrested Pinnick. “ ‘An inference cannot be said to be reasonable which can only be drawn by a capricious disregard of apparent truthful testimony, that is in itself probable, and is not at variance with other proved or admitted facts.’ ” Indiana Bd. of Pharmacy v. Horner (1961), 241 Ind. 326, 172 N.E.2d 62, 66. For these reasons the majority is in error.

In a final effort to support the asserted inference, the majority quote Brickman v. Robertson Bros. Dept. Store (1964), 136 Ind.App. 467, 202 N.E.2d 583, to support the majority’s contention that Wilson would be liable for her alleged participation in the detention even though she did not know the detention was illegal in its inception. Id., 202 N.E.2d at 586. The majority’s interpretation of Brickman is misadvised. Brickman holds only that if a defendant has in fact participated in the detention, then the defendant may be liable therefor even though he did not know the detention was illegal. The proposition which the majority extracts from Brickman is predicated upon actual participation in the detention. If this predicate is shown, then Brickman would hold a defendant liable even though the defendant did not know the detention was illegal in' *536its inception. However, in the case at hand the very predicate itself is in issue. Namely, did Wilson participate at all in the detention? The majority’s quotation from Brickman does not concern this predicate. The majority’s quotation concerns only the consequence which may flow from the existence of the predicate. Thus the majority’s reliance on Brickman is misadvised.

Furthermore, the law officer’s mistake gives rise to a problem which is not addressed in the majority opinion. Namely, when a private citizen such as Wilson calls for the assistance of a law officer, is such a request to be made only at the citizen’s peril for fear that blunders by the officer will impose liability upon the citizen? I would hope not. It should not be the policy of the law to impose liability upon a citizen when an alleged injury results solely from an error of the officer. A contrary conclusion, such as that reached by the majority, goes far to discourage citizens from seeking the assistance of law officers and the judicial process.

There is an even more compelling reason to reverse the judgment against DuBreuil. Nothing in the record shows me that DuBreuil asked the officer to arrest Pinnick. How then can she be found liable for the alleged false imprisonment? The majority opinion appears to give two bases for imposing liability upon DuBreuil.

First, the majority argue that DuBreuil, in executing the affidavit, did not have “reasonable cause to believe” that Pinnick would injure her or Wilson. However, DuBreuil’s motive in executing the affidavit is irrelevant. Regardless of whether she lacked “reasonable cause” or even though she may have possessed malice, it would make no difference. Neither “reasonable cause” nor “malice” is an element of the tort of false imprisonment. W. PROSSER, LAW OF TORTS 48 (4th ed. 1971); 35 C.J.S. False Imprisonment § 7, p. 629 (1960); American Express Co. v. Patterson (1881), 73 Ind. 430, 437; Boaz v. Tate (1873), 43 Ind. 60, 66; Colter v. Lower (1871), 35 Ind. 285, 286. To the extent that the majority impose liability upon DuBreuil because of her motive in executing the affidavit, then it would appear that the majority have contravened the foregoing authority and have created a new tort.

Second, the majority argue that the defendants are jointly liable. However, DuBreuil would be liable jointly with Wilson only if DuBreuil *537personally participated in the detention of Pinnick or engaged in its indirect procurement. 35 C.J.S. § 36, supra. DuBreuil did not personally participate — she never asked anybody to detain Pinnick. Also, the mere execution of an affidavit should not be sufficient to hold her liable for “indirect procurement” when some person unknown to her later blunders and misapprehends the affidavit. Brickman v. Robertson Bros. Dept. Store (1964), 136 Ind.App. 467, 202 N.E.2d 583, cited by the majority, does not call for a contrary result. Brickman held only that an employer may be liable for the acts of its employee; a basic rule of agency. Here we have different persons doing different things at different times and their only commonality is that they are sisters. I cannot read Brickman to command the conclusion that liability for false imprisonment may be imputed on the basis of sisterhood to the author of an affidavit which was not at all executed for the purpose of imprisoning Pinnick. Consider, for example, 35 C.J.S. § 28b(1)(b), supra, p. 667, wherein it is said that

“[a] party who merely files an affidavit for a capias and leaves the matter wholly in the hands of the justice to issue the writ or not as he sees fit, and who neither aids nor advises as to any future steps or action in the matter, is not liable to a person who may thereafter be arrested on a capias issued by the justice.”

For all these reasons there is insufficient evidence to support a verdict of false imprisonment.

I turn now to alleged malicious prosecution, the alternative theory upon which the jury was instructed. It is settled law that a plaintiff suing for malicious prosecution must show that the underlying lawsuit terminated in his favor. Terre Haute & I. R. R. v. Mason (1897), 148 Ind. 578, 46 N.E. 332. However, the record in the case at bar simply fails to disclose that the surety proceeding has terminated. Much less does the record indicate that it terminated in Pinnick’s favor. Consequently, there is insufficient evidence upon which to justify a verdict of malicious prosecution.

There being insufficient evidence to support either theory against these defendants, this cause should be reversed. TR. 59(A)(4). Further, I would reverse because there is no evidence of any damage other than nominal.

*538In this cause, Pinnick is theoretically entitled to four types of damage. These are nominal, general, special, and punitive. The very nature of false imprisonment or malicious prosecution could justify an award of nominal damages. C. MCCORMICK, LAW OF DAMAGES §§ 20 & 107 (1935); PROSSER, supra, at 42. General damages may be recovered where there is evidence to support them. 35 C.J.S. § 64, supra; MCCORMICK, §§ 107 & 108, supra. Special damages were not pleaded and may not be recovered. MCCORMICK §§ 107 & 108, supra; TR. 9(G). Where malice is present, then punitive damages may be recovered. Boaz v. Tate (1873), 43 Ind. 60,66. The authorities are also agreed that punitive damages for alleged false imprisonment are not properly awarded where the alleged injury is merely the result of a mistake or where malice is absent. PROSSER, supra, at 44; 35 C.J.S., supra, § 67b.

In the case at bar, the award of $10,000 obviously represents more than mere nominal damages for the alleged forty-eight minute detention. Pinnick simply failed to offer evidence of any actual damages. The majority opinion cites some case law to support the proposition that the jury may use discretion to measure damages. This I do not deny. However, in the case at hand Pinnick failed to prove any actual damage in the first instance. Consequently, because there is no evidence even of the existence of such damage, the majority’s discussion of the measure or the amount of such damage is not on point.

As already stated, the award cannot represent special damage because none was either pleaded or proved. The only remaining alternative is that the jury’s award represents punitive damages. However, punitive damages are improper in this case. This fiasco resulted entirely from the blunder of the law officer. An award of such damages against Wilson and DuBreuil should not be premised upon the mistake of a third person. See the authorities cited supra. Neither Wilson nor DuBreuil possessed malice sufficient to justify an award of punitive damages. Simply stated,, the ill-will and hard feelings which accompany church dissension and which were fostered by Pinnick himself are not equivalent to the malice sufficient to justify an award of punitive damages.

For all these reasons I must dissent.

Note —Reported at 383 N.E.2d 420.