40 Haw. 503 | Haw. | 1954
This is an action in tort for actual and punitive damages in the total sum of $92,515.40 arising from the alleged willful and malicious misconduct of the defendant in refusing to perform a purely ministerial duty required by statute. The injuries resulting from that conduct are alleged to have been suffered by the plaintiff in the loss of the use of money and in the incurring of legal expenses or attorney's fees and other expenses of litigation in successfully compelling the defendant to perform his statutory duty to draw warrants. The alleged wrongful conduct occurred when the defendant was auditor of the City and County of Honolulu and while the plaintiff was entitled to have certain warrants drawn in its favor. This misconduct is alleged in two counts of the second amended complaint. The second count alleges that the misconduct is a willful and malicious refusal to draw those warrants until it became necessary to bring mandamus and compel him to do so. The first count alleges in effect that such refusal was aggravated by a willful and malicious making by the defendant of a false return in those proceedings to defeat the relief therein sought and ultimately achieved. The alleged willful and malicious making of a false return under the first count is thus a particular phase or part of the alleged willful and malicious refusal under the second count and together constitute the wrongful conduct on which the action in tort for damages is based. With respect to the prior mandamus proceedings it is needless to state at large such proceedings as they are sufficiently set forth in Glover v. Fong, Auditor,
The specification of errors on which the plaintiff relies for reversal challenges the ground on which the demurrer was sustained by the trial judge and accordingly presents two main questions of law. One goes to the sufficiency of the first count and the other to the applicability of the doctrine of election of remedies so as to bar the action as to the second count.
Before stating the question of insufficiency, the allegations pertinent to it will be first considered as set forth in the first count. They are in substance that when faced with a plain ministerial duty to draw certain approved and preaudited warrants made payable to the plaintiff, the defendant willfully refused to perform that duty "for personal and political motives and out of malice toward plaintiff * * * and with intent to injure plaintiff and to put it to large expense," and when faced with an alternative writ of mandamus, he purported to show cause why he had not performed that duty by filing a return, the "material allegations" of which he "knew were false," and did so "willfully and with intent to delay and/or prevent plaintiff from obtaining the monies lawfully due it." The defendant's continuing breach of ministerial duty before mandamus is further alleged to have been "malicious, wilful and arbitrary." After mandamus, it is additionally alleged, particularly with respect to the false return, to have been "wilfully and maliciously [done] with intent to injure the plaintiff [and] made in bad faith." The parts of the return alleged to be false are five of its paragraphs which the complaint identifies by number, states as to substance and characterizes as the "material allegations of fact which were false." It *506 would unduly burden this opinion to set out in detail those certain paragraphs, as so stated and characterized. Suffice it to say that they are destructive of the factual basis on which relief was sought and ultimately obtained in the prior mandamus proceedings and would have constituted complete defenses thereto had they not been false.
The question of insufficiency as the first of the two main questions presented relates only to the allegations of the first count which characterize the paragraphs of the return as well as the return itself. It is whether that count is insufficient because it does not further characterize those paragraphs, alleged to be "material" and "false," by alleging them to be also "necessary" and to further characterize the return, alleged to be "false," by alleging it to be also "legally sufficient." Assuming without deciding the materiality of those additional characterizations, they are mere conclusions of law which may be clearly drawn from the facts alleged and add nothing to the force and effect of those facts. The well-settled rule, therefore, applies that a complaint is sufficient if it alleges ultimate facts from which conclusions of law may be drawn and that those conclusions need not be pleaded. (Miller v. City of Dayton,
The second question of the two presented relates to the cause of action itself as stated by the second count and is whether it is barred under the doctrine of the election of remedies by the bringing to a successful conclusion of the prior action of mandamus. This question is a novel one in this jurisdiction. The learned trial judge answered it in the affirmative upon the authorities of Kendall v. Stokes,
At common law, an injured party would be clearly entitled to recover damages for a public officer's wrongful conduct in refusing to perform a purely ministerial duty even had he acted in good faith. The Supreme Court of the United States succinctly states that well-settled rule as a living part of the law to be "that where [as here] the law requires absolutely a ministerial act to be done by a public officer and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. There is an unbroken current of authorities to this effect. A mistake as to his duty and honest intentions will not excuse the offender." (Amy v. Supervisors, 11 Wall. 136, *508 138, 20 L.ed. 101.) The authorities above cited by the plaintiff all support this rule in cases where, as here, the particular public officer had been compelled by peremptory writ in a prior mandamus action to perform the duty which he had refused to perform. Such rule of liability therefore is determinative of the question unless the statutory remedy of mandamus in this jurisdiction is inconsistent with the common-law remedy of damages so as to invoke the doctrine of the election of remedies.
Fundamentally, mandamus is to compel performance and not to recover damages. Consonant thereto, damages are not recoverable in mandamus under the statutes of this jurisdiction. Jurisdictions following the statute of 9 Anne, c. 20, however, permit damages to be recovered in the mandamus proceeding itself. Some courts therein have held that mandamus and an independent action for damages are inconsistent remedies, requiring an election, and that recourse to one barred the other. (Smith v.Berryman, supra; Achey v. Creech, supra; State v. Ryan, 2 Mo. App. 303.) But the basis for so holding is not because of the statutory permission to recover damages in mandamus but because the statutory ground of mandamus in those jurisdictions is inconsistent with the common-law ground of an action for damages, there being no real inconsistency between those remedies themselves. That basis of inconsistency as to grounds rather than as to remedies rests upon principles underlying the doctrines of estoppel and res judicata. Those principles can best be expressed by quoting the following language of Chief Justice Taney inKendall v. Stokes, supra, that "Whenever, therefore, a mandamus is applied for, it is upon the ground that [the petitioner] cannot obtain redress in any other form of proceeding. And to allow him to bring another action for the very same cause after he has obtained the benefit of the mandamus would not only *509
be harassing the defendant with two suits for the same thing but would be inconsistent with the ground upon which he asked for the mandamus, and inconsistent also with the decision of the court which awarded it." Similar language is to be found in the cases above cited following the statute of Anne, supra. They, as well as the Kendall case, are distinguishable from the case at bar primarily because no inconsistency exists in this jurisdiction between the ground of mandamus and that of an action for damages. In Hawaii, a petitioner's ground of mandamus is not that he cannot obtain redress in any other form of proceeding for the statute recognizes that he may have "other means of relief" and may obtain redress by "ordinary legal forms." (R.L.H. 1945, § 10262. See Spellman v. Wilson,
The ancient common-law procedure giving rise to an independent ancillary suit upon a false return has little, if any, bearing upon the question under consideration. That procedure arose from the conclusive and untraversable character of a return, whether it be true or false, as the ultimate pleading in mandamus at common law. But such procedure was abolished in 1710 by statute of Anne, supra, with respect to mandamus cases against usurpers of municipal office and in 1831 by statute of 1 William IV, c. 21, s. 3, with respect to all mandamus cases. Of decisive historical significance, however, it never became a part of the practice or procedural common law in Hawaii. Nor has a return in Hawaii ever had the conclusive and untraversable character which it had in England before the year of 1710. Consequently, there is no basis *511
in this jurisdiction upon which to predicate a suit for the mere making of a false return. It is, therefore, immaterial whether the instant action of tort meets the strict requisites of the old common-law concept of a false return. But that does not mean that a cause of action in this jurisdiction may not be bottomed, as here, upon a willful and malicious making of a false return with intent to injure as a part of a persistent and deliberate attempt to evade performance of a purely ministerial duty. On the contrary, all "the promptings of reason and common sense, which are the cardinal principles of the common law," indicate that such misconduct is tortious and actionable. (Gear v. Dole,
The allegations in both counts of the second amended complaint describe a wrongful conduct of the defendant that is willful, malicious and oppressive in which he persisted with the intent to injure the plaintiff and to put it to great expense. Those allegations coupled with the ones describing the injuries proximately resulting from that conduct bring the case clearly within the general rule of liability for actual damages. Such conduct by its very character invokes the doctrine of punitive or exemplary damages within the equally well-settled rule "that in actions of tort punitive damages may * * * be awarded * * * in cases where the defendant `has acted wantonly or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations' * * * or where there has been `some wilful misconduct or that entire want of care which would raise the presumption of a conscious indifference to consequences.'" (Bright v. Quinn,
The willful and malicious misconduct of the defendant as alleged may be compared to the comparable misconduct on which is based an action for malicious prosecution. One misconduct in effect maliciously invites and aggravates litigation and the other maliciously prosecutes it for the same purpose of intended harassment. Each misconduct constitutes the same character of malicious tort which brings the injured party into a court of law wherein he ordinarily must engage the services of an attorney and incur other expenses of litigation in order to enforce or protect his rights. Those legal expenses may be awarded as compensatory damages to the plaintiff in an action for malicious prosecution. (Soffos v. Eaton, 152 F. [2d] 682; American OptometricAss'n v. Ritholz, 101 F. [2d] 883; Curls v. Lenox GarageCo.,
Both questions presented are answered in the negative.
Order sustaining demurrer reversed and cause remanded for further proceedings consistent with this opinion.