I concur in the opinion of Chief Justice HAYS. All authorities agree that a private person is liable in a false-arrest case for the harm suffered by the innocent person if (1) the private person initiated or procured the institution of the criminal proceedings (2) if the criminal proceedings were initiated without probable cause or primarily for some purpose other than bringing an offender to justice, and (3) if the criminal proceedings have terminated in favor of the accused. Restatement of the Law, Torts, section 653. A false-arrest case is materially different from other tort actions where the injury has resulted from negligence, either actionable or contributory. A mere statement of the above rules governing a false-arrest case shows that in this type of action as against a private person, there is a wide area for damage without wrong. The "innocent" person is just as much harmed if he fails to show the proceedings were initiated or procured by the private person or if he fails to show want of probable cause in the private prosecutor or if he fails to show termination of the proceedings in his favor. Such damage is one of the incidents of life in organized society. It is part of the price all citizens pay for the benefits of government.
In the introductory note to chapter 29, Restatement of the law of Torts, it is said of these restrictions that the law imposes in a false-arrest case against a private person that they "represent an adjustment between two highly important social interests. The first is the interest of society in the efficient enforcement of the criminal law, which requires that private persons who aid in the enforcement of the law should be given an effective protection against the prejudice which is likely to arise from the termination of the prosecution in favor of the accused. The second is the interest which the individual citizen has in being protected against unjustifiable and oppressive litigation of criminal charges, which not only involve pecuniary loss but also distress and loss of reputation."
The very first restriction imposed upon recovery for wrongful prosecution of a criminal proceeding is the burden placed upon the plaintiff to prove the criminal proceedings were either initiated by the defendant or the defendant procured the institution of the criminal proceedings. Here it is clear the *Page 615 defendants did not initiate the criminal proceedings, since the sworn charge was made by the Federal officer, so the only question is whether the defendants procured the institution of the criminal proceedings. In Restatement of the Law, Torts, section 653, comment b, the rule is stated:
"A person who does not himself initiate criminal proceedings may procure their institution in one of two ways: (1) by inducing a third person, either a private person or a public prosecutor, to initiate such proceedings, or (2) by prevailing upon a public official to institute them by filing an information. It is, however, not enough that some act of his should have caused the third person to initiate the proceedings. One who gives to a third person, whether public official or private person, information of another's supposed criminal conduct or even accuses such other thereof, causes the institution of such proceedings as are brought by the third person. The giving of the information or the making of the accusation, however, does not constitute a procurement of the proceedings which the third person initiates thereon if it is left to the uncontrolled choice of the third person to bring the proceedings or not as he may see fit."
I will not review the facts, already canvassed at length in the majority and dissenting opinions. To me they amount to no more than that the defendant Johnston gave the Federal officer certain information which, with other information already known to the officer, may have "caused" the officer to institute criminal proceedings on this and other alleged crimes, but the officer, in the words of the above rule, was "left to the uncontrolled choice * * * to bring the proceedings or not" as he saw fit. One cannot say from this record that the officer was "prevailed upon" by defendant to file the information against plaintiff, nor can we say the defendant procured the institution of the criminal proceedings by the part he played in the officer's investigation that preceded the filing of the information. To hold otherwise would, it seems to me, render a serious blow to criminal investigation. So often the victim is the only person who saw the criminal at the time of the commission of the crime. If he is to be liable, at his peril, when later asked by the officers if he will identify a suspect, then officers will in the future receive little *Page 616 co-operation from civilians in their war against crime. Sometimes the officers' investigation of a suspect precedes the identification by the victim, sometimes it follows such identification. It should make no difference as far as the question of initiating the criminal proceedings is concerned. Suppose in this case the officers knew nothing about plaintiff at the time Johnston identified him as the man who passed the check. Afterwards they learned other stolen checks with his name had been passed. They procured a copy of plaintiff's handwriting and learned from a handwriting expert that the endorsements on the other stolen checks were similar to plaintiff's handwriting. They learned that two of the stolen checks were taken from the mailbox in the apartment house where plaintiff lived. They learned from other victims that plaintiff's discharge was used in each instance as a means of identification. They called plaintiff to the district attorney's office, question him, and then the officer without again consulting the original victim files an information. Could anyone think the original victim who made the identification — later proved to be a mistake — initiated or procured the institution of the criminal proceedings and is liable for damages for the harm caused by the criminal proceedings that the officers filed? I think not. And yet that is this case with the identification preceding the investigation by the officers.
I share Justice Mantz's feeling of sympathy expressed in his dissenting opinion. My study of the record convinces me that harm has been done to an innocent young man. He has felt the heavy processes of the Federal law — arrest and imprisonment. But I think his case falls in that area of damage without wrong of this defendant under the first restriction in a false-arrest case. In that area juries have no function to perform. But in that area Governments, and notably the Federal Government, have made requital by private acts. It is my fervent hope that if and when plaintiff seeks recompense by such proceedings, as the innocent victim of the Government's charge, that his claim receive favorable consideration. The officers admit they initiated the proceedings. I think the record shows they were entirely without blame. But the fact remains they prosecuted an innocent man. His claim should appeal to the conscience of the Government that prosecuted him. *Page 617