ZIEGLER v. REUZE (1945)

The plaintiff commenced this action to recover damages for injuries alleged to have been sustained in an action for malicious prosecution. The defendant answered and the action was tried by the court sitting without a jury. The trial court made findings of fact in favor of the defendant. Shortly after the judgment was entered there was a substitution of attorneys for the plaintiff. Samuel D. Hamburg, Esq., was substituted in place of William H. Penaat, Esq. Later Mr. Hamburg prepared and served all papers necessary to complete a case on appeal and since has conducted all proceedings on this appeal.

The exhibits have not been brought up. The action was based on a criminal complaint alleged to have been presented by the defendant. Quoting from the reporter's transcript the record shows: ‘The Court: The date is September 26, 1942, and it is sworn to before Judge Cronin of the Municipal Court. It is a regular printed form of complaint, charging that the defendant on the 16th day of September, 1942, committed the crime of misdemeanor, towit: disturbing the peace. That is all the complaint states. The printed portion also specifies that the defendant did wilfully, unlawfully and maliciously disturb the peace and quiet of the neighborhood of Corbett Avenue, between Twenty-third and Twenty-fourth Streets, in the City and County of San Francisco, by making loud and unusual noise, etc.’

As to what was involved in the charge so stated was testified to by this plaintiff as follows: ‘My husband had been working in the afternoon, so he come home after 5 and had supper, and after supper, between 6 and 7, he said he left some tools laying on the lot where he had been working; so he went over after supper, and I was washing the dishes. I didn't go with him. And after a while I heard my husband, very excited, call ‘Louise! Louise!’ He was very excited. I had no shoes on. I slipped my shoes on quick and ran out in front of my home, and I saw coming around, there was Mrs. Reuze hanging on to my husband. I was at the front of the house, on the sidewalk. That is when I saw them come around the corner. Mrs. Reuze, the defendant, was hanging on to my husband and pulling him back; and my husband tried to get away but she held him back; and there was an Arthur Kelly that had a big pot in his hand aiming for my husband's head—Arthur Kelly—he is not here but his wife is here. I called to my husband to come in the house, and that Mrs. Reuze, the defendant, was still hanging; but my husband jerked loose and, at the same time, I saw Pete Reuze, her husband, flying around the corner and he had a gun—it looked like a machine gun—and he said, ‘I will blow your—’ should I say the way he said it? He said ‘I will blow your God damn head off, you dirty skunks. I am going to kill you both,’ and he was aiming at me, and I was standing by my house, and I said nothing. And she, the defendant, said ‘You dirty skunks, you dirty skunks, you dirty skunks, and I will kill you, you dirty sons of bitches,’ and Mr. Kelly said, ‘Who's a dirty skunk?’ And he was the man with the pot.'

The defendant's husband told the story as follows: ‘After I got through working, the wife told me that those people were putting up stake posts to erect a fence; so I went down the lane and I saw a big railroad tie sticking up on the wall, and I didn't pay attention to it, and I was looking to see if it was on my ground, and I didn't see nothing; and I saw Mr. Ziegler come from behind and he grabbed me by the neck, he said, ‘What in the hell are you looking at, you little son of a bitch.’ Anyway, he grabbed me by the neck and dragged me to the sidewalk, and I started to holler to have witnesses, and then the wife came, Mrs. Ruffoni came, and the folks living up above, who was Mrs. Kelly, Mr. Kelly, and, I don't know, possibly Mrs. Williams heard the commotion, and may have heard something; but anyway, I had those people there, and when they saw—Mrs. Kelly saw what was going on—I don't know how far away, but she called the police and the police came after it was all over, because those folks came, the wife, Mrs. Ruffoni, and Mr. Kelly, Mrs. Kelly was there, and when the wife saw he had me by the neck, she came to separate the two of us and then he got a hold of her, and pushed the two of us in the middle of the street, and here were machines coming around behind, and I was hollering, ‘Here's a machine!’ And he was trying to push the two of us in the middle of the street, and that's the truth. And after that we managed to get loose, or, he released his grab on us, and the machines missed us by maybe three feet is about all I can see, and after that he was hollering for Louise—Mrs. Ziegler; and she came down, and she said, ‘Christopher, come on home, and leave those two sons of bitches alone,’ and she didn't pay no more attention; and here comes a police wagon, a sedan, and the officer said, ‘Oh, well, we know those people. We had trouble before, Nobody got hurt. Forget about it. We came over because we were sent over,’ and he said ‘That's why we came here,’ and that was that particular case. Your Honor, may I say something else? I have been pestered by those people all along. They said I am the ‘machine gunner’ and they have sent the FBI up. I have no objection for anybody to investigate me on my actions, but it seems on different occasions that those people have persecuted me on having machine guns.'

The plaintiff concedes that in an action for malicious prosecution the plaintiff may show on his examination in chief that his general character or reputation was good at the time of the prosecution, evidence of that nature being held to be admissible for the purpose of throwing light on the question of want of probable cause. The plaintiff also concedes that in such an action evidence of the general bad character of the plaintiff may be introduced by the defendant to show that the prosecution was not without probable cause. Calhoun v. Bell, 136 La. 149, 66 So. 761, Ann.Cas.1916D, 1165; 1 Wigmore on Evidence p. 78, sec. 258; Murphy v. Davids, 181 Cal. 706, 186 P. 143. However the plaintiff earnestly contends that such character may be shown only by testimony of the general reputation of such person in the community in which he resides and not by proof of specific wrongful acts collateral to the action on trial. Marks v. Reissinger, 35 Cal.App. 44, 169 P. 243. Continuing the plaintiff contends that the rule last stated was violated by the examination of nearly every witness called by the defendant. We think the contention is fully sustained by the record.

While Mr. Reuze was testifying as a witness for defendants the proceedings in part were as follows:

Mr. Zimdars:

‘Q. They told the Bethlehem Steel Company that you had stolen tools from them, and that you were a thief? A. And that I threatened his wife with a machine gun.

‘Q. And they tried to get you discharged? A. Yes, that was the idea when they came there, to have me discharged.

‘Mr. Penaat: I move to strike this latter testimony. It is all hearsay, and it is entirely incompetent, irrelevant, and immaterial.

‘The Court: He hasn't stated the source of his information.

‘Q. How do you know that all these annoyances resulted from the activities of these people? A. Yes.

‘Q. How do you know? A. Because the chief of the guards called me in his office and told me about it himself.

‘Mr. Penaat: That is hearsay.

‘The Witness: A. And I asked him if he wanted to be a witness and he said, ‘I will be glad to.’

‘Mr. Penaat: I ask that that be stricken.

‘The Court: Yes, but it still produces a certain amount of effect in my mind.’

What the trial court meant by that portion of its order which we have italicized, we will not pause to debate. It was a clear intimation that the court intended to consider evidence stricken out as being improper. For the trier of the facts to do so was to violate fundamental rules of evidence. The erroneous contention just mentioned is reinforced by comments made during the examination of Mrs. Saran which will be noted below.

When Mrs. Saran was testifying for defendant the proceedings in part were as follows:

‘Q. Do you know Mrs. and Mr. Ziegler? A. Yes.

‘Q. You have known them all the time you have lived there? A. Well, I work most of the time and have very little time to spend with my neighbors; but they made so much trouble for me from the day——

‘Mr. Penaat: We are only concerned with the trouble set forth in the complaint, September 16, 1942.

‘The Court: Malice is involved in this case—I don't know what the lady is going to say, naturally, but I think that the attitude and relations that existed between the plaintiff here and all of her neighbors has more or less to do with this case.

‘Mr. Zimdars: Furthermore, when Mr. Penaat went into matters that included this, and went all over the lot, I asked the question if I may be permitted to——

‘The Court: I am not concerned with just what happened on the actual day of this encounter. We will go into the entire situation. Your counsel will probably ask you to relate specific incidents.

‘Mr. Zimdars: Q. Relate what Mr. and Mrs. Ziegler have done with the neighbors, including Mrs. Reuze. A. From the day that I bought the place, it was very run down, so I had to do quite a little bit repairing on it, and most every day for weeks at a time I had people coming from the Board of Health and the City Inspectors were coming, on complaints of Mr. and Mrs. Ziegler. In fact, they had written letters complaining about it. I was under the impression that I could do a little bit of work without a permit, so therefore I did; and when I had all these complaints, I got my permit to go ahead with my work; but I had trouble with them; every time I had a piece of lumber come to be delivered, they would call the inspectors up, and they were always standing on the sidewalk. Mrs. Ziegler from the time she gets up in the morning until she goes to bed stands on the sidewalk and watches everything that is going on. You can't go across the street, and you can't even mail a letter but what they know what goes on in the whole street. This particular day of this trouble, I was coming home and Mr. Ziegler was putting up posts for a spite fence that is fully ten feet high, in front of Mrs. Reuze's house, and they also planted about 150 trees. You can't see Mrs. Reuze's house from the street at all. She had a very beautiful view and they have ruined it with this fence. Mrs. Reuze minds her own business and didn't have trouble with anyone, even with those people. I walk across the street, because for months Mr. Ziegler, for no reason at all, called me a son of a bitch, and he called me a red headed son of a bitch. I never had any trouble with them outside of that; and I found three dead rats in front of my doorway——

‘The Court: Q. You didn't see them put them there? A. No, but no one else would throw any rats.

‘The Court: I will accept a motion to strike that.

‘Mr. Penaat: Yes. As a matter of fact, I think all of her testimony is irrelevant.

‘The Court: There are parts of it that have some relevancy to the nature of this case.’

That the testimony regarding the rats should have been stricken the parties do not challenge. Comparing the other testimony given by Mrs. Saran with the allegations of the criminal complaint it is patent that all of her testimony was irrelevant and the plaintiff's attack thereon was improperly denied. The trial court erred in assuming that it was permissible to introduce evidence of numerous collateral wrongful acts for the purpose of proving malice and negativing the claim of want of probable cause. But as we have shown such testimony was not admissible for such purpose. 10 Cal.Jur. p. 1047 Evidence, sec. 297.

The improper theory prompting the ruling just considered was continued in the two rulings we have quoted above: ‘The Court: Malice is involved in this case—I don't know what the lady is going to say, naturally, but I think that the attitude and relations that existed between the plaintiff and all her neighbors has more or less to do with this case. * * * I am not concerned with just what happened on the actual day of this encounter. We will go into the entire situation. Your counsel will probably ask you to relate specific incidents.’ That ruling was entirely too broad. There was nothing in the proceedings showing plaintiff sought to exclude evidence of any part of the incident of September 16, 1942. The witness was not asked any question regarding the general reputation of this plaintiff. She was asked and was proceeding to enumerate certain collateral wrongful acts of the plaintiff. The trial court erred in receiving evidence of such acts. 10 Cal.Jur. 1047, Evidence, sec. 297.

When Mrs. Sheehy was testifying for the defendants she was allowed to make an uninterrupted statement of troubles that she had had, and what the public officials had told her. That statement was followed by these proceedings:

‘The Court: The cops told you? A. The policemen, the Board of Health, and the building inspectors. That is the cause of this trouble, and there is no reason for it; but that stopped our friendship.

‘The Court: Any questions?

‘Mr. Penaat: No questions, except at this time I will renew my objection to this witness' testimony and all similar testimony, on the ground that it is incompetent, irrelevant, and immaterial, and has nothing to do with the disturbance of the peace charge on September 16th.

‘The Court: I told you before that I wasn't going to restrict my attention to that.

‘Mr. Penaat: I think your Honor should.

‘The Court: I think all this is calculated to show the general nature and character of the plaintiffs and their inclination to interfere with their neighbors.

‘The Witness: A. We used to have peace on the hill.

‘Mr. Penaat: I think that is all improper testimony.

‘The Court: Next witness. You weren't at the Bond and Warrant Clerk's office when the warrant was issued?

‘The Witness: Yes, I was.

‘The Court: All these witnesses could be asked about the general reputation of the plaintiffs for peace and quiet. That would be relevant, and that is why I am permitting this testimony, in order to show all the specific acts.’

The next and last witness called by the defendants was Mrs. Mabel Kelly. In part the proceedings were as follows:

‘Q. What is the reputation of Mr. and Mrs. Ziegler among the neighbors for peace and quiet? A. He has been causing a lot of trouble.

‘The Court: Is it good or bad? A. Bad. Both tried to get my husband fired from two jobs, and they threw two-by-fours on the street to try and wreck our car; and they opened the top window and they would throw a shoe or something at his car and hit the fender; and another time——

‘The Court: Why are they sore at you? A. I never speak to either one.

‘Q. Why are they sore at your husband? A. No reason at all.

‘Q. Was it your husband who was working on the WPA? A. Yes.

‘Q. What kind of project was it? A. Just——

‘Q. Was he working? A. Yes.

‘Q. Or was he just standing still? A. He was working in the office.

‘Mr. Zimdars: Q. And they went around and had that stopped? A. Yes.

‘The Court: That was during the tough times when people used to be supported and they were making jobs for people.

‘Mr. Penaat: The check wouldn't have been stopped if he was entitled to have it. His employment would not have been terminated unless there was justification for the termination.’

Then later the following occurred:

‘Mr. Penaat: I will renew my objection to the testimony of this witness prior to the occasion of September 16th, and ask that it be stricken from the record.

‘The Court: Suppose a person lived in a residential locality like this, and it can be shown that they have had trouble with all the neighbors around them? Don't you think that has some bearing upon the general attitude and state of mind of people of that character?

‘Mr. Penaat: No.

‘The Court: Is there a conspiracy upon this entire hill against the plaintiff here?

‘Mr. Penaat: That is not the point that is in issue.

‘The Court: It is a matter in issue. How are you going to decide——

‘Mr. Penaat: I might have committed six misdemeanors and——

‘The Court: I will decide this case without further testimony. I have heard plenty. * * * They have this WPA worker taken off his job, and they make half a dozen or more complaints against the maintenance of conditions that are in various homes up there. * * *’

It is clear from what we have recited that the trial court improperly admitted evidence of many collateral wrongful acts; that some of it was stricken out and some was allowed to stand; that whether stricken or otherwise the trial court allowed such improper evidence to affect and that it did affect its mind; and that the judgment under attack was the result of said alleged errors.

The judgment is reversed.

STURTEVANT, Justice.

NOURSE, P. J., and GOODELL, J., concur.