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
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 P.2d 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, 368 P.2d at 398. In reaching this conclusion, Justice O'Connell's opinion quoted from the opinion of Chief Justice Vanderbilt in Ferdinand v. Agricultural Insurance Co., 22 N.J. 482, 126 A.2d 323, 62 A.L.R.2d 1179 (1956), which had previously been followed in Wiebe v. Seely, Administrator, 215 Or. 331, 343-344, 335 P.2d 379, 385 (1959):
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,
See also Foster v. Agri-Chem, Inc., 235 Or. 570, 385 P.2d 184 (1963); Palmer v. Van Petten Lbr. Co., 265 Or. 347, 509 P.2d 420 (1972); Wattenburg v. United Medical Lab., 269 Or. 377, 525 P.2d 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
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. Plaintiff's testimony was that he grabbed Curtis by the arms to keep him from "trying to get back at the officer." He continued:
His testimony continued with additional details. Debra Rogers, plaintiff's 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.
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.
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
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 interfering 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 P.2d 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.
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
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.
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.
Reversed and remanded.
BRYSON, J., concurs in the result.
TONGUE, J., specially concurring opinion, joined by LENT, J.
HOWELL, J., dissenting in part, joined by HOLMAN, J.
TONGUE, Justice, specially concurring.
I agree with the majority that this case must be reversed and remanded for a new
At the outset, the majority accepts plaintiff's contention that his testimony and that of his wife that he was struck in the face by defendant was "uncontradicted testimony" and says that the question to be decided is "whether and when a jury may be directed to give conclusive effect to the uncontradicted testimony of a proponent of a fact in issue." The majority then accepts as the law controlling in this case (i.e., a case in which the testimony is "uncontradicted") the rule as stated in Rickard v. Ellis, 230 Or. 46, 368 P.2d 396 (1962), including its emphasis upon the two factors of (1) the availability of evidence to contradict the "uncontradicted testimony" and (2) the likelihood that the witness's interest in the litigation might tempt him to testify falsely. That rule is then discussed at some length.
The majority then says that:
It is then stated by the majority that evidence to contradict plaintiff's testimony of the alleged striking "was not only readily but uniquely available to the defendant," but that he did not offer himself as a witness to contradict that testimony.
After thus holding that application of these two Rickard "factors" in this case presented a "close question" and that the application of such factors involves the exercise of "judgment" (for which a trial judge would not ordinarily be reversed in a "close case"), the majority then seems to have abruptly "changed the ending to the story" in then reversing the trial court upon the ground that "the jury in this case might have disbelieved plaintiff's version of the striking" in view of the "setting of emotional tension" and the fact that "there were differences between Officer Hill's written report and the testimony of Mr. and Mrs. Rogers on other aspects of the episode."
In my opinion, such a disposition of this case is so ambiguous and self-contradictory as to cause confusion among trial judges and lawyers as to the proper function of the jury, the trial judge and this court in cases in which testimony is alleged to be "uncontradicted" and the manner in which the Rickard rule is to be applied in such cases. It is also my opinion that this course of reasoning by the majority, at least as applied to the facts of this case, is patently wrong for at least two reasons:
(1) In holding that either a trial court or this court may, as a matter of "judgment," withdraw from the jury the issue of the credibility of the testimony of a witness in a case such as this, the rule adopted by the majority is contrary to the mandatory requirements of Art. VII (Amended), § 3 of the Oregon Constitution and of ORS 17.250, 17.255, 41.310, 41.360 and 44.370 as applied to a case such as this, in which the opposing party is entitled to the benefit of a statutory presumption.
(2) In any event, the rule of Rickard is not properly applicable to the facts of this case so as to give rise to any question of "judgment" by either a trial court or by this court to withdraw from the jury the credibility of the testimony of the plaintiff and his wife, because that testimony was not "uncontradicted testimony," so as to make either necessary or proper a consideration of the "factors" of "interest" and "availability" of evidence.
1. The mandatory requirements of the Oregon Constitution and statutes as applied to cases involving presumptions.
Article VII (Amended), § 3 of the Oregon Constitution was adopted by vote of the people of Oregon in 1910 as the result of what were then considered to be abuses by Oregon judges in setting aside jury verdicts
The mandatory provisions of Art. VII, § 3 not only prohibit the Oregon courts from "re-examining" any fact found by a jury "unless the court can affirmatively say there is no evidence to support the verdict," but also prohibit the Oregon courts from withholding from the jury any issue of fact which, if submitted to the jury, could not be "re-examined" by the courts because of the presence of some evidence to support such a finding. This constitutional mandate is commonly regarded as of benefit primarily to plaintiffs on motions for nonsuit, directed verdict and judgment n.o.v. There are occasions, however, as in this case, when defendants are also entitled to its benefit as a matter of constitutional right.
In addition to the provisions of Art. VII, § 3 of the Oregon Constitution, the Oregon legislature has enacted statutes including similar mandatory provisions which expressly reserve various questions for exclusive determination by Oregon juries and which impose further limitations upon the common law powers of Oregon courts.
Among these statutory provisions are ORS 17.255, which provides that Oregon juries "are the exclusive judges of all questions of fact" and ORS 17.250, which provides as follows:
In Oregon presumptions are not mere procedural devices which disappear upon the offer of contrary evidence, as in some states. Instead, by reason of the express provisions of ORS 41.310, presumptions themselves constitute "indirect evidence."
ORS 41.360 lists various disputable presumptions and provides that they "may be controverted by other evidence, direct or indirect, but unless so overcome, the jury is bound to find according to the presumption." The first of these "disputable presumptions" is that "a person is innocent of crime or wrong." This presumption is not limited to criminal cases, but extends to civil tort cases, including the "wrong" of negligence.
It follows, by reason of these express constitutional and statutory provisions, that at least in the ordinary case, such as this, in which a party is entitled to the benefit of a statutory presumption, the jury is not bound to find in conformity with the testimony of any number of witnesses called by the opposing party, even though otherwise "uncontradicted."
In my opinion, there can be no escape from this conclusion because: (1) in Oregon, by statute, a statutory presumption is evidence; (2) by reason of Art. VII, § 3, the Oregon courts must leave to juries the decisions of all questions of fact upon which
That this result is required by reason of Oregon constitutional and statutory requirements is also made clear by the provisions of ORS 44.370, which provides as follows:
If it be said that such a result leaves the Oregon courts powerless in cases such as this to prevent or correct "injustice" resulting from "mistakes" by juries in refusing to accept "uncontradicted" testimony, it should be noted that substantially the same contention was made some years ago with reference to the question whether, under Art. VII, § 3, Oregon courts have power to prevent or correct "injustice" resulting from "excessive" verdicts by juries for damages for personal injuries. That contention was finally laid to rest by this court in an opinion by Justice Lusk in Van Lom v. Schneiderman, 187 Or. 89, 210 P.2d 461 (1949). The answer in both cases is that although juries may sometimes make mistakes, so do judges, and the voters and legislature of Oregon, by the constitutional and statutory provisions adopted by them, made a deliberate choice to confer upon juries the exclusive and final authority to resolve such questions and to remove from the courts power to either set aside such determinations by juries or to withhold such questions from juries for determination.
In Rickard v. Ellis, 230 Or. 46, 368 P.2d 396 (1962), the principal case relied upon by the majority and the leading Oregon case on the subject of "uncontradicted evidence," the jury in a personal injury case found that defendant was negligent, but that plaintiff had suffered no injuries. On appeal plaintiff contended that the evidence that he was injured was uncontradicted and that the trial court erred in refusing to resubmit the case to the jury. This court in Rickard rejected that contention and affirmed the verdict and judgment for the defendant.
In the course of its decision, however, this court (at 51, 368 P.2d at 398) quoted with approval from Ferdinand v. Agricultural Insurance Co., 22 N.J. 482, 126 A.2d 323 (1956), in its holding that in cases involving uncontradicted testimony such testimony may be so clear that "disbelief of the story could not reasonably arise," in which event the question is "for the court to decide and not the jury." In doing so, this court appeared to adopt a rule that is entirely proper in jurisdictions in which the common law powers of courts to control what they consider to be "unreasonable" verdicts by juries has not been limited by constitution or statute, as in Oregon. No reference was made by this court in Rickard to the requirements of either Art. VII, § 3, or of ORS 17.250, 17.255, 41.310, 41.360 or 44.370.
It is important to note, however, that no contention was made in Rickard that the defendant in that case was entitled to the benefit of any presumption, so as to constitute evidence to be considered by the jury in deciding whether to accept the uncontradicted testimony. On the contrary, plaintiff's "uncontradicted testimony" of her injury was opposed only by what this court referred to (at 53, 368 P.2d 396) as the possible inference from her failure to seek medical aid that she was not injured in the accident.
In other words, Rickard was a case in which the "uncontradicted testimony" was upon the issue of the existence and extent of plaintiff's injuries — an issue as to which defendant was not entitled to the benefit of any presumption, as would have been the case if the "uncontradicted evidence" was that defendant was negligent.
Thus, Rickard was a case in which it was arguable that the trial court had power to
Nevertheless, this court in Rickard affirmed the refusal of the trial court to set aside the finding by the jury in that case that plaintiff suffered no injuries, despite the "uncontradicted" testimony to the contrary, and held that it was entirely proper to submit to the jury the question of the credibility of that testimony. Indeed, in the course of that holding this court noted (at 53, 368 P.2d 396) that it would not have been unreasonable for the jury to infer from plaintiff's conduct that she was not injured.
In this case, however, because the defendant is charged with an assault and battery upon the plaintiff, he is entitled to the benefit of the statutory presumption that he is "innocent of crime or wrong."
It also follows that because of Oregon constitutional and statutory requirements the majority opinion in this case is in error in its holding that it was a matter of "judgment" for either the trial court or this court to decide whether or not to withdraw from the jury the credibility of such testimony.
There may be cases in which presumptions in Oregon may be overcome as a matter of law, such as cases involving admissions by the testimony of an adverse party,
For all of these reasons, it is my firm opinion that there is no escape from the conclusion that in a case such as this, in which the testimony claimed to be "uncontradicted" consists of the oral testimony of a witness, but in which there is evidence to the contrary consisting of the "indirect evidence" of a statutory presumption, the credibility of such testimony must be submitted to the jury because the people and legislature of Oregon, by the constitution and statutory limitations imposed by them upon the common law powers of the Oregon courts, have deliberately chosen to confer upon the juries of this state the exclusive power to decide whether or not to believe and accept such testimony in such cases.
2. The express limitations of the rule as stated in Rickard v. Ellis.
Aside from the constitutional and statutory limitations imposed upon the Oregon courts in such cases, and assuming that the rule as stated in Rickard v. Ellis, supra, may be properly applicable to this case, provided, of course, that its facts come within the limitations of that rule, it is nevertheless clear from the record in this case that the testimony of plaintiff and his wife was not "uncontradicted testimony" within the limitations of the rule as stated in Rickard, so as to make it proper for the majority to consider the two-fold "factors" to be applied in cases of "uncontradicted evidence," i.e., the "availability of evidence" and the "interest" of the witness.
Rickard (230 Or. at 51, 368 P.2d 396) quotes Ferdinand v. Agricultural Insurance Co., supra, as stating the "correct principle" for application in cases in which it is contended that testimony is "uncontradicted." According to that "principle," a trial court may withdraw from the jury the question of the credibility of such testimony provided that such testimony satisfies the following requirements.
Thus, the mere fact that testimony is not directly contradicted by other testimony is not of itself sufficient.
In this case the testimony accepted by the majority as "uncontradicted" within the rule as stated in Rickard consists of testimony by plaintiff and his wife that plaintiff was hit by Officer Hill while plaintiff was holding down the arms of one Dender Curtis, so as to render him helpless, at which time Officer Hill came up and, without provocation or excuse, took a swing with his fist at Dender Curtis, who then "ducked."
With all due respect to the majority, it is my opinion that such testimony, even standing alone, is somewhat "incredible in the light of general knowledge and common experience." At the least, such testimony can hardly be said to be "not extraordinary."
On the contrary, just as it was held in Rickard that the credibility of the testimony of the plaintiff in that case was of such a nature as to be properly submitted to the jury, so also was this testimony of such a nature as to require that it be submitted to the jury because of those express requirements of the rule as stated in Rickard, even
It also appears upon a reading of the entire record that it cannot be properly contended in this case that the testimony by plaintiff and his wife was "not contradicted in any way by witnesses or circumstances," as also required by the rule as stated in Ferdinand, which was recognized in Rickard to be the "correct principle" for application in such cases. On the contrary, this testimony by plaintiff and his wife was "contradicted" both by plaintiff's testimony on cross-examination and by the written report of this incident by Officer Hill, which was received in evidence when offered by plaintiff as a report which included Hill's "narration of what Mr. Rogers's involvement was in the episode."
Plaintiff testified on cross-examination that the incident in which he was "grazed on the side of the face" occurred "at the time [he] was trying to pull [Curtis] off" and when "they [Curtis and Hill] were hitting each other with closed fists." The jury could have properly found from this testimony that any "grazing" of plaintiff's cheek by Hill's fist, if it happened at all, happened when plaintiff interfered with Hill's previous attempt to arrest Curtis, at which time Curtis escaped and "ran away," and did not happen on the subsequent occasion when Curtis reappeared, even if Curtis was then "intercepted" by plaintiff and his wife, and that this testimony by plaintiff in and of itself contradicted plaintiff's story of the unprovoked assault by an officer of a helpless victim.
To the same effect, Officer Hill's report stated that his physical "scuffle" with Dender Curtis and plaintiff occurred when he first attempted to arrest Curtis after Curtis had slapped his face and thrown a lighted cigarette into it, at which time he "exited my vehicle and grasped the subject by the arm" and told him he was under arrest; that it was then that plaintiff "grabbed Mr. Curtis's left arm" and that in the ensuing "scuffle" Curtis "broke" Hill's "hold" and "fled." Officer Hill's written "narrative statement" goes on to say that after he then was unsuccessful in his attempt to arrest plaintiff for interfering with his arrest of Curtis, he radioed for assistance; that before help arrived "Curtis came back to the scene," with his right hand behind his back, stating that he was "going to shoot me. Subject was THEN taken away by his brother." The jury could have properly found from Officer Hill's written narrative report, contrary to plaintiff's testimony, that there was no physical encounter between Officer Hill and either Dender Curtis or plaintiff at that point; that plaintiff did not then "intercept" Dender Curtis and hold his arms down, and that Officer Hill did not then attempt to strike Curtis with his fist.
Finally, there was evidence in the record which directly impeached the credibility of plaintiff's testimony and from which the jury could have properly found that plaintiff's testimony of the attempt by Officer Hill to strike Curtis as he was being held helpless by plaintiff was not truthful. Both plaintiff and his wife testified under oath that at the time of this incident they did not know Dender Curtis, at least by name, and attempted to give the impression that this "gentleman" who they saw "walking up the walkway" was a stranger to them. On cross-examination, however, plaintiff admitted that Dender Curtis was one of a group of young men involved in a previous incident with the police, after which they all, including Curtis, went to the police or sheriff's office to complain of their treatment by the police. The jury could properly find from this admission that the other testimony by plaintiff and his wife was false.
Similarly, plaintiff's wife denied that plaintiff shouted any obscenities; that she heard any obscenities used toward the police, except that "Dender Curtis might have, but I don't remember what he said." Plaintiff also testified that he did not recall what was said or "hear" what was said when Dender Curtis was shouting at Officer Hill. To the contrary, the narrative report of Officer Hill is replete with reference to obscenities, not only by Curtis when he first approached Officer Hill's patrol car, but also by plaintiff. The jury could have
Plaintiff also testified under oath that Officer Hill did not tell him to "stay out of it or he would be arrested" or that the affair between Officer Hill and Curtis was "none of [plaintiff's] business." This is also contrary to Hill's written narrative of the incident, which the jury could have believed, with the result that it could have properly found that this testimony by plaintiff was also untrue.
For all of these reasons, as well as the impression made upon the jury by plaintiff and his wife in their physical appearance and manner while testifying, the jury could properly have rejected as a complete falsehood their story of the unprovoked attempt by Officer Hill to strike a victim whose hands were being held down.
It follows, in my opinion, based upon examination of the entire record (which the majority does not undertake to summarize), that the testimony by plaintiff and his wife, even if given by disinterested witnesses, was not "uncontradicted testimony" within the limitations stated in Ferdinand and adopted in Rickard. It follows that defendant was entitled to have the credibility of that testimony submitted to the jury without the necessity of considering the "factors" of the "interest" of plaintiff and his wife and the availability of contrary evidence.
As previously noted, even in Rickard this court held that it was a jury question whether the "uncontradicted" testimony in that case was true. Such a result is also supported by the decisions of this court after Rickard, in which it has usually been held that uncontradicted testimony by interested witnesses, as in this case, does not preclude the jury from its traditional and proper function of "weighing" such testimony and of determining the credibility of such witnesses.
Despite all of this, the majority considers this case to be one of "uncontradicted" testimony and to present a "close question" requiring the exercise of "judgment" by the trial judge, apparently because Officer Hill did not give oral testimony in his own behalf, but was content to rely upon his written report, which was received in evidence upon offer by plaintiff as Hill's "narration" of the "episode." Indeed, the majority only reverses the trial court because of the "setting of emotional tension" and the "differences" in Hill's report "on other aspects of the episode."
On the contrary, and with all due respect to the majority, it is my firm opinion that this was not a "close case" calling for the exercise of either "judgment" or "discretion," but was a clear case in which the defendant was entitled, as a matter of right, to have the credibility of plaintiff's testimony submitted to the jury both (1) because of the express limitations imposed upon the Oregon courts in such cases by the constitution and statutes of Oregon and (2) because such testimony was not "uncontradicted testimony" within the requirements of the rule as stated in Ferdinand and as adopted in Rickard.
LENT, J., joins in this concurring opinion.
HOWELL, Justice, dissenting in part.
I agree with the majority opinion that the trial court should not have instructed the jury that "the only evidence in this case is that the defendant did strike the plaintiff," because that was a question of fact for the jury to decide. However, no exception was taken by the defendant. It is axiomatic that without an exception the giving of the instruction would not constitute reversible error.
Experience teaches that lawyers frequently contend for positions which they do not continue to pursue when the court rules against them. If a lawyer expects to be relieved of his obligation to take an exception
If there had been a proper exception, then I would concur in the result reached by the majority.
HOLMAN, J., joins in this dissent.
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.