Summary
noting that "a `lawful' restraint does not constitute false imprisonment"
Summary of this case from Leest v. SteffensOpinion
No. 151.
Argued November 30, 1970. —
Decided March 5, 1971.
APPEAL from a judgment of the circuit court for Milwaukee county: ROBERT J. PARINS, Circuit Judge for the Fourteenth Circuit, Presiding. Reversed and remanded.
For the appellants (respondents on cross appeal) there were briefs by Ray T. McCann and Richard A. McDermott, both of Milwaukee, for Marquette University, Mary Alice Cannon, and June B. Steiner, and by Irving W. Zirbel of Milwaukee, for Dean D. Miller, and oral argument by Mr. McDermott and Mr. Zirbel.
For the respondent (cross appellant) there was a brief by Gaines Saichek, attorneys, and Irving D. Gaines and David A. Saichek of counsel, all of Milwaukee, and oral argument by Irving D. Gaines.
In September of 1966, Saralee Maniaci left her home in Windsor, Ontario, Canada, to attend school at Marquette University in Milwaukee. She was sixteen years old at the time. She arrived at the airport in Milwaukee carrying a check for $2,000, which was to be used to pay the year's expenses. She was met at the airport by Father Thomas A. Stemper, a Jesuit priest employed by the university and an old Maniaci family friend. He took her to Heraty Hall, which was to be her dormitory.
In the following months Saralee Maniaci became very dissatisfied with life at Marquette. She found the quality of education unimpressive, and she was bored with her courses. She was also unhappy with the social life. She complained to her father about the "fast" social life at the university. She spent three of the first seven weekends at her parents' home in Windsor. She travelled from Milwaukee to Windsor with Leonard McGravey, a thirty-two-year-old former priest, whom she had known since she was in high school. Each time she went home, she told her parents of her desire to leave Marquette. Her father each time convinced her that things would get better and that she should give the school another chance. She returned to Marquette on October 30, 1966, with the idea that she would give Marquette one more chance, but that if things did not work out, she would have her parents' permission to quit.
On Wednesday, November 2, 1966, she decided to quit school. She told her closest friend, Jean Huby, that she was leaving, and Jean said she wanted to leave too. Jean asked to go home with Saralee to Windsor, because Jean thought her father would send her back to Marquette if she tried to go to her own home. Saralee agreed to this request. Jean got Saralee to promise, however, that she would not tell anyone where they were going.
On Thursday, November 3, 1966, Saralee went to the Student Credit Bank and withdrew the $1300 she had remaining on deposit there. She then went to the railroad station and purchased two tickets to Detroit, which was across the river from Windsor, and as close as she could get to Windsor by train. She then returned to Heraty Hall and began packing.
A representative of the student bank notified the dean of women's office that Saralee had said that she was leaving school. Assistant Dean of Women Patricia Watson notified Esther Morgan, the head resident at Heraty Hall. Esther Morgan notified Joseph Maniaci that his daughter Saralee was intending to run away from school to marry an older man. When Maniaci learned that the man was Leonard McGravey, he said there must be some mistake and gave his approval of whatever plans Leonard McGravey had.
Esther Morgan told Saralee that on Friday morning, November 4, 1966, she was to report to the office of the dean of women. When Saralee failed to report, Dean of Woman Mary Alice Cannon went with Assistant Dean Watson to Heraty Hall to persuade Saralee to remain at the school. Saralee admitted that she intended to leave Milwaukee that evening and refused to state her destination. She stated a number of reasons for leaving, including hostility toward her parents, dissatisfaction with education at the university, a desire to act, sing, and write, and a belief that she was more mature than the other students she knew. She insisted that she was going to leave by train at 8 o'clock that evening and that she would notify her father later. She did not state that she had, in fact, received her father's permission to leave. The discussion continued through the morning.
Father Stemper was called about 11:30 a.m. to help persuade Saralee to remain at the school until her parents could be notified. Dean Cannon concluded that Student Health Physician Dean D. Miller should be called. Dr. Miller arrived at Heraty Hall at about 1:30 p.m. accompanied by Nurse June B. Steiner. Dr. Miller conferred with Saralee for about two hours. During that time, Dean Cannon and Assistant Dean Watson persuaded Jean not to leave with Saralee. Throughout the afternoon, unsuccessful attempts were made by Saralee and the dean of women to contact Saralee's father. At 3:30 p.m., Dr. Miller suggested to Dean Cannon that Saralee be hospitalized. Father Stemper saw nothing abnormal about Saralee's conduct and disagreed with Dr. Miller, although he did not know Dr. Miller proposed commitment to a mental hospital.
Milwaukee police officers were called and asked to bring the proper papers for temporary detention of Saralee Maniaci under the emergency provisions of sec. 51.04 (1), Stats. The officers arrived at about 4:30 p.m. The "Application for Temporary Custody" was filled out by Dr. Miller and signed by him, by Dean Cannon, and by Nurse Steiner. The "Application for Temporary Custody" stated:
"51.04 Temporary detention of persons. (1) EMERGENCY PROVISIONS. The sheriff or any other police officer may take into temporary custody any person who is violent or who threatens violence and who appears irresponsible and dangerous. The sheriff or other police officer shall take temporary custody of any person when it appears by application delivered to such officer and executed by 3 persons, one of whom shall be a physician licensed to practice medicine and surgery in this state, that such person has a mental illness, is in need of hospitalization, and is irresponsible and dangerous to himself or others. The application shall set forth the name and address of the patient together with a statement by the physician which describes the illness and reasons why the patient is considered irresponsible and dangerous. This is an emergency provision intended for the protection of persons and property. Such person may be kept in custody until regular proceedings are instituted to cope with the case, but not exceeding 5 days. The application provided for herein shall be presented by such sheriff or other police officer to the county court of the county in which the patient is found, and shall be considered an application for mental examination within the meaning of s. 51.01 (1) (a)."
"That each of the applicants is an adult resident of the State of Wisconsin, and that one of the applicants, Dean D. Miller M.D., is a physician licensed to practice medicine and surgery in this state.
"That Sara Lee Maniaci of the City of Milwaukee, in said county, hereinafter called the patient, is believed to be mentally ill for the reason (state facts observed or information known tending to show existence of mental illness, mental infirmity, or mental deficiency): Sara Lee is a 16 yr. old freshman at Marquette University, wishes to leave the University without the consent of the University officials or her parents, to an unknown destination. Her plans for the future are indefinite and it is obvious that she cannot give rational reasons for leaving.
"That the patient is in need of hospitalization and is irresponsible and dangerous to self or others, so as to require immediate temporary detention by reason of she has persuaded other girls to leave the University with her for reasons which are illogical to us. As a minor we cannot permit her to leave, and feel that she should be confined until her parents have been informed of the situation, and appear on her behalf, and until she has been thoroughly evaluated by a psychiatrist.
"WHEREFORE, your applicants pray for immediate temporary detention of the patient in the custody of the sheriff or other police officer, not exceeding five days, and for a judicial inquiry to determine the mental condition of the patient and for such orders of temporary or permanent nature as may be necessary.
Dean D. Miller M.D., 1945 Wauwatosa Ave. Wauwatosa, Wisc. Mary Alice Cannon 731 Glenview Ave. Wauwatosa June B. Steiner RN. 3731 W. Linden Pl. Milwaukee"The police officers took Saralee to the Milwaukee County General Hospital, where she was taken to a locked ward on the fifth floor for mental observation. The officers said they had an intelligent conversation with Saralee and that she was cooperative and displayed no tendencies toward violence.
At the hospital her clothes were removed and she was given a bath. She was checked for scars or bruises and given a housecoat to wear. She stated that while confined to a room with several other female persons, she saw what appeared to her to be shocking conduct by two female persons in the same bed.
She persuaded a social worker at the hospital to notify Leonard McGravey what had happened to her. At about 11 p. m., McGravey arrived at the hospital and was permitted to talk to Saralee after she told the nurse he was her fiance. She told him what had happened, and he relayed the message to her father. Her father contacted Dr. Miller and insisted that his daughter be released. Dr. Miller was unable to have Saralee released at that time of night, but he arranged to have Saralee transferred from a larger ward on the fifth floor to a locked private room. Dr. Miller did not tell Joseph Maniaci that Saralee would continue to be confined in a mental hospital. She was, however, released from the hospital at about 9 o'clock the next morning. She returned to her dormitory, gathered up her belongings, and went to Windsor. She never returned to Marquette.
On November 29, 1967, an action was commenced by Saralee Maniaci through her guardian ad litem, Andrew C. Shane, and by her father, Joseph Maniaci, against Marquette University, Dr. Dean D. Miller, Dean Mary Alice Cannon, and Nurse June B. Steiner. During the course of the trial, all causes of action were dismissed except Saralee's action against the defendants for false imprisonment. That matter was submitted to the jury, and it returned a general verdict for the plaintiff and assessed her damages as follows: (1) Compensatory damages — $5,000; (2) punitive damages: Marquette University — $35,000; Dr. Miller — $2,000; Dean Cannon — $5,000; and Nurse Steiner — $1.
On motions after verdict, the trial court upheld the compensatory damages award, but reduced the punitive damages assessment against Marquette University to $12,000 and the assessment against Dean Cannon to $1,000. Judgment was entered on the verdict as so modified. The defendants appeal from this judgment. The plaintiff also cross-appealed from the judgment.
The defendants' appeal is premised upon the contention that the trial court erroneously permitted the trial to proceed, and the jury verdict to be rendered, on the question of false imprisonment. Defendants contend that plaintiff's only possible cause of action was for malicious prosecution, and, as a corollary to that contention, take the position that the evidence was insufficient to sustain a verdict for malicious prosecution, and that the damages were excessive.
Plaintiffs, respondents herein, take the position that the facts spelled out a cause of action for false imprisonment, that the verdict is supported by sufficient evidence, and that the damages found by the jury were reasonable.
We agree with the defendants in their contention that no cause of action has been proved under the theory of false imprisonment.
This court has defined the tort of false imprisonment as, "`The unlawful restraint by one person of the physical liberty of another.'" Lane v. Collins (1965), 29 Wis.2d 66, 69, 138 N.W.2d 264. It is apparent, therefore, that a "lawful" restraint does not constitute false imprisonment, though it may well constitute some other tort. Restatement, Torts 2d, page 52, sec. 35, points out:
"(1) An actor is subject to liability to another for false imprisonment if (a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and (b) his act directly or indirectly results in such a confinement of the other . . . ."
The commentary on this section states, however, that an act which makes an actor liable for confinement by a lawful arrest is not false imprisonment, but may be malicious prosecution or abuse of process.
Restatement, Torts 2d, p. 69, sec. 45A, points out that, "One who instigates or participates in the unlawful confinement of another is subject to liability to the other for false imprisonment." Comment (b) to the chapter states in part:
"In order for this Section to be applicable to an arrest, it must be a false arrest, made without legal authority. One who instigates or participates in a lawful arrest, as for example an arrest made under a properly issued warrant by an officer charged with the duty of enforcing it, may become liable for malicious prosecution, as stated in Chapter 29, or for abuse of process, as stated in Chapter 31, but he is not liable for false imprisonment, since no false imprisonment has occurred."
Prosser points out that no cause of action for false imprisonment will lie:
"If the defendant complies with the formal requirements of the law, as by swearing out a valid warrant, so that the arrest of the plaintiff is legally authorized . . . . He is therefore liable, if at all, only for a misuse of legal process to effect a valid arrest for an improper purpose." Prosser, Law of Torts (hornbook series, 3d ed.), p. 62, sec. 12.
1 Harper and James, Law of Torts, p. 232, sec. 3.9, states: "If it [confinement] has been extra judicial, without legal process, it is false imprisonment."
In the instant case it is clear that the type of tort that the concept of "false imprisonment" encompasses did not take place. There was not an "unlawful" restraint of freedom.
Since the plaintiff Saralee was confined pursuant to the mandate of sec. 51.04 (1), Stats., and by a petition that conformed, prima facie at least, to the jurisdictional requirements of the statute, the confinement was pursuant to law. She was arrested by legal process in the sense that the document executed by the defendants under the statute conferred authority or jurisdiction upon the police officers to take physical custody of the plaintiffs person and to deliver her to the mental hospital.
Although the tort committed was not that of false imprisonment as contended by the plaintiff, neither can we agree with defendants' contention that the insult to plaintiff's liberty can properly be denominated as "malicious prosecution." The reason why defendants assert plaintiff's only cause of action is malicious prosecution is clear, for defendants point out, after setting up the "strawman" of malicious prosecution, that plaintiff cannot prove significant facts to maintain her action. In this contention they are correct, but their argument proves too much in that, by so doing, they demonstrate that plaintiff's cause is not one of malicious prosecution, irrespective of the factual lacunae upon which defendants would rely.
Harper and James, supra, page 300, sec. 4.1, states:
"The tort of malicious prosecution of criminal proceedings occurs when one citizen initiates or procures the initiation of criminal proceedings against an innocent person, for an improper purpose and without probable cause therefore, if the proceedings terminate favorably for the person thus prosecuted."
Prosser, supra, page 852, sec. 113, explains that the cause of action for malicious prosecution is designed to afford redress for invasions of the right to be free from unjustifiable litigation. Four elements originally were requisite to a cause of action for malicious prosecution:
"1. A criminal proceeding instituted or continued by the defendant against the plaintiff.
"2. Termination of the proceeding in favor of the accused.
"3. Absence of probable cause for the proceeding.
"4. `Malice,' or a primary purpose other than that of bringing an offender to justice." Prosser, supra, p. 853, sec. 113.
Prosser demonstrates that malicious prosecution lies only when a plaintiff's interests are invaded by an ostensibly legal process. The essence of the tort is the "perversion of proper legal procedure." (P. 853) He distinguishes it from false imprisonment in that the latter tort occurs only when a plaintiff is arrested or confined without a warrant or legal authority. As stated above, the tort alleged here is clearly not that of false arrest. It is equally clear that the facts do not spell out an action for malicious prosecution.
In Elmer v. Chicago N.W. Ry. Co. (1950), 257 Wis. 228, 231, 43 N.W.2d 244, this court stated the six essential elements of malicious prosecution:
"1. There must have been a prior institution or continuation of some regular judicial proceedings against the plaintiff in this action for malicious prosecution.
"2. Such former proceedings must have been by, or at the instance of, the defendant in this action for malicious prosecution.
"3. The former proceedings must have terminated in favor of the defendant therein, the plaintiff in the action for malicious prosecution.
"4. There must have been malice in instituting the former proceedings.
"5. There must have been want of probable cause for the institution of the former proceedings.
"6. There must have been injury or damage resulting to the plaintiff from the former proceedings."
It should be noted that Wisconsin takes the position that the unjustifiable litigation need not be criminal in nature — that any prior regular but unjustifiable judicial proceedings, civil or criminal, will suffice.
In Yelk v. Seefeldt (1967), 35 Wis.2d 271, 277, 278, 151 N.W.2d 4, we specifically pointed out that "the institution of a proceeding to inquire into the mental health of a person is grounds for a suit for malicious prosecution." (Emphasis supplied.)
In the instant case, however, elements that must be present to characterize the action as one of malicious prosecution are absent.
Here, unlike the situation in Yelk v. Seefeldt, supra, the petition was never presented to a court, and no order of a court ever provided for the institution of a mental inquiry. Whatever proceedings antedated this action did not terminate in favor of the plaintiff. In the instant case the defendants simply chose not to proceed and released Saralee from the mental hospital.
There was no "malice" in the conduct of the defendants that led to Saralee's confinement in a mental ward. Yelk v. Seefeldt, supra, page 280, referred to the element of "malice" as one that would be demonstrated by evidence as "wanton or willful disregard for the facts or law in [a] manner . . . that would evince any ill will or vindictiveness."
However the conduct of the defendants may be described, it was not malicious in the sense referred to in Yelk. The evidence showed defendants had a genuine concern for the plaintiff's welfare, and they prevented her from leaving the university to protect what they conceived to be Saralee's own best interests.
Other elements of malicious prosecution are arguably present. Although the plaintiff would contend that no probable cause existed for the confinement, and defendants would argue that no injury or damage resulted as the result of the occurrence, these are determinations that need not be made in view of the disposition we make of this appeal. Suffice it to say that the plaintiff failed to properly prove up a cause of action in either false imprisonment or malicious prosecution. We, however, do not for that reason dismiss her complaint, for we are satisfied that the proof submitted would, skeletally at least, support an alternate cause of action — that of abuse of process.
Abuse of process is defined by the Restatement, Torts, page 464, sec. 682, in the following terms:
"One who uses a legal process, whether criminal or civil, against another to accomplish a purpose for which it is not designed is liable to the other for the pecuniary loss caused thereby."
Prosser, supra, page 876, sec. 115, points out that abuse of process supplies a remedy that is denied under the theory of malicious prosecution. Abuse of process lies even in those instances where:
". . . legal procedure has been set in motion in proper form, with probable cause, and even with ultimate success, but nevertheless has been perverted to accomplish an ulterior purpose for which it was not designed."
The gist of the, tort is:
". . . misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used . . . is the only thing of importance." Prosser, supra, p. 876, sec. 115.
Malice is not required. Probable cause does not defeat the plaintiff's action, and there need not have been a termination in the plaintiff's favor.
Our appraisal of the evidence leads to the conclusion that the plaintiff's proof spells out a cause of action for abuse of process. It is clear that the purpose of all the individual defendants was not essentially to have inquiry into Saralee's mental condition, though Dean Cannon, at least, was concerned about her "illogical" state of mind. Rather, the purpose of the three defendants was to detain her until such time as her parent had been notified and he had either given his permission for Saralee to leave or had directed Saralee to stay at school. The purpose was to have her physically detained until the problem of her withdrawal from school was resolved to the satisfaction of the school authorities. Dr. Miller acknowledged that he told Saralee he could not release her without her parent's permission. To assure her nonrelease until that time, he struck upon the idea of using the statute that permits the temporary detention of persons who demonstrate symptoms of dangerous mental illness.
On the facts before us, this was a perversion of the purpose of the law and constituted an abuse of process. After' Saralee's father was contacted, Saralee was released — all interest in her mental condition vanished, and the pretense of proceeding with a mental inquiry was abandoned.
The trial judge made the specific finding that the purpose of the petition was to detain the plaintiff and not to examine the condition of her mental health. These facts, which appear in the record on the instant appeal, are facts which would support a cause of action for abuse of process. However, the lawsuit was not tried upon that theory, and the jury was not instructed in respect to factual issues that must be resolved in the trial of an abuse-of-process tort.
Sec. 251.09, Stats., provides that:
" 251.09 Discretionary reversal. In any action or proceeding brought to the supreme court by appeal or writ of error, if it shall appear to that court from the record, that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the supreme court may in its discretion reverse the judgment or order appealed from, regardless of the question whether proper motions, objections, or exceptions appear in the record or not, and may also, in case of reversal, direct the entry of the proper judgment or remit the case to the trial court for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with the statutes governing legal procedure, as shall be deemed necessary to accomplish the ends of justice."
As viewed in the light of this statute, it is apparent that the real controversy has not been tried and that the liability of the defendants, as applied to these facts, was founded upon an erroneous view of the law, an error in which both plaintiff and defendants participated, since neither conceived of the case as involving a tort other than false imprisonment or malicious prosecution.
It is apparent that the defendants had no opportunity to defend on the basis of legal theories that are available to defendants in abuse-of-process actions. Moreover, the nature of both plaintiff's and defendants' proof in an action brought solely for abuse of process might well be different and of an emphasis at variance from that presented at this trial. It is, therefore, the conclusion of the court the interests of justice require that the judgment be reversed and the cause remanded for a new trial, and that, prior to such new trial, the plaintiff be required to amend her complaint, to allege, if she can, a cause of action for abuse of process. Inasmuch as we do not dismiss the complaint, it remains viable and may be amended on remand.
The portion of plaintiff's cause of action, insofar as it relates to false imprisonment, is dismissed. While we have used the undisputed facts of record and facts found by the trial judge as verities for the purpose of this appeal, no such findings of fact on this appeal shall be conclusive or res judicata on any subsequent retrial of this case. The parties may, in the interest of reducing the time and expense of subsequent retrial, of course, stipulate to the accuracy of any of the testimony contained in the present record.
Inasmuch as a new trial on all issues is required, we will not consider the contention of the plaintiff that the damages were inadequate or the contention of the defendants that they were excessive. Nor will we comment on the contention of defendant Marquette University that the evidence was insufficient to find that it had ratified its agents' tort, and therefore not obliged to answer in punitive damages.
We should point out, however, that defendants' assertion that Marquette University, as an eleemosynary institution, is not liable for the intentional torts of its agents finds no support in the Wisconsin law. Under Wisconsin law, the general rule is, subject to the usual rules of agency, that an employer is vicariously liable for the torts of his employees. While, in 1917, in Morrison v. Henke (1917), 165 Wis. 166, 160 N.W. 173, this court created an exception and laid down the rule which persisted until 1961 that a charity is exempt from liability for the negligent torts of its employees, defendants have failed to point out any rule of this jurisdiction or any other where an exception has ever been created to relieve charitable institutions of the intentional torts of their servants under circumstances where the principal, not a body entitled to immunity, would otherwise sustain vicarious liability. No policy reasons are urged by defendants, and none occur to us, why the policy of vicarious liability adopted in Kojis v. Doctors Hospital (1961), 12 Wis.2d 367, 107 N.W.2d 131, 107 N.W.2d 292, ought not apply to intentional torts under usual agency rules.
We conclude that Marquette University cannot escape liability on the ground urged.
By the Court. — Judgment is reversed under the provisions of sec. 251.09, Stats., and cause is remanded for such other and further action and proceedings as may be consistent with this opinion and for a new trial. No costs are to be taxed on this appeal.