-)4%01)26.&)!,)!5%4)%5-)4%01)26.&)!,)!5%4)%5
.+3,% 3,"%0 02)#+%
%'+)'%-#%)!")+)26.&3"+)#8#%0100%12 !00!-21%'+)'%-#%)!")+)26.&3"+)#8#%0100%12 !00!-21
2!-2.-!/+!-
.++.52()1!-$!$$)2).-!+5.0*1!2(22/10%/.1)2.06+!5,)!,)%$33,+0
%#.,,%-$%$)2!2).-%#.,,%-$%$)2!2).-
2!-2.-!/+!-
%'+)'%-#%)!")+)26.&3"+)#8#%0100%12 !00!-21
)!,)%4
4!)+!"+%!2(22/10%/.1)2.06+!5,)!,)%$33,+04.+)11
()1!1%.2%$)1"0.3'(22.6.3&.0&0%%!-$./%-!##%11"62(%.30-!+1!2-)4%01)26.&)!,)#(..+.&!5
-12)232).-!+%/.1)2.062(!1"%%-!##%/2%$&.0)-#+31).-)--)4%01)26.&)!,)!5%4)%5"6!-!32(.0)7%$
%$)2.0.&-)4%01)26.&)!,)#(..+.&!5-12)232).-!+%/.1)2.06.0,.0%)-&.0,!2).-/+%!1%#.-2!#2
+)"0!06+!5,)!,)%$3
CASES
NOTED
concurring
opinion
are
signs
that
federal
supremacy,
though
dormant,
is
not
yet dead.
JEAN
T.
ROTH
NEGLIGENCE:
LIABILITY
OF
PUBLIC
OFFICERS-
ARREST
WARRANTS
Plaintiff,
in
a
negligence
action,
sought
to
recover
damages
from
a
State
Beverage
Department
employee
for
careless
performance
of
duty
and
failure
to
make
due inquiry
before charging
the
plaintiff
with
a
crime
by
causing
the
issuance
of
an
arrest
warrant.
The
trial
court
found the
defendant
guilty
of
negligence.
Held,
reversed:
there
is
no
legally
recognized
cause
of
action
in
negligence
for
improperly
causing
the
issuance
of
an
arrest
warrant.
Wilson
v.
O'Neal,
118
So.2d
101
(Fla.
App.),
cert.
denied,
122
So.2d
403
(Fla.
1960).
Inasmuch
as
the instant
case
appears to
be
one
of
first
impression
in
Anglo-American
jurisdictions,
it
is
necessary
to
discuss
analogous
concepts
in
order
to
develop
properly
the
dichotomy
existing
between
intentional
and
unintentional
tort
liability
for
improperly
causing
an
arrest
warrant
to
be
issued.
The
action
of
malicious
prosecution
is
the
remedy
available
to
protect
persons
from
unjustifiable
litigation.'
This
remedy
exists
against
a
person
who
causes
an
arrest
by
maliciously
bringing
a
suit
upon
false
charges,
or
who
maliciously
makes
out
a
false
affidavit.
2
Two
distinct
elements,
malice
and
want
of
probable
cause,
are
the
gist
of
this
action.
'
Malice
may
exist
as
a
matter
of
fact
(actual
malice)
which
requires an
intent
to
inflict
1.
34
Am.
JUR.
Malicious Prosecution
§§
1, 2
(1941);
54
C.J.S.
Malicious
Prosecution
§ 4
(1948);
PROSSER,
TORTS
§
98
(2d
ed. 1955).
2.
Delk
v.
Killen,
201
Md.
381,
93
A.2d
545
(1953);
Everett
v.
Henderson,
146
Mass.
89,
14
N.E.
932
(1888);
Hunter
v.
Karchmer,
285
S.W.2d
918
(Mo.
App.
1955);
Brusco
v.
Morry,
54
R.I.
108, 170
Atl.
84
(1934);
4
Am.
JUR.
Arrest
§
132
(1936);
\Vaitt,
Torts-Malicious
use
of
legal
process-Pleading,
15
GA.
B.J.
81
(1952).
3.
McClinton
v.
Rice,
76 Ariz. 358,
265
P.2d
425
(1953);
Singleton
v.
Perry,
45
Cal.2d
489,
289
P.2d
794
(1955);
Lounder
v.
Jacobs,
119
Colo.
511,
205
P.2d
236
(1949);
Glass
v.
Parrish,
51
So.2d 717
(Fla.
1951);
Auld
v.
Colonial
Stores,
76
Ga.
App.
329,
45
S.E.2d
827
(1947); Dauphine
v.
Herbert,
37
So.2d
829 (La.
App.
1948);
Muniz
v.
Mehlman,
327
Mass.
353,
99
N.E.2d
37
(1951);
Kennedy
v.
Crouch,
191
Md.
495,
62
A.2d
582
(1948);
Merriam
v.
Continental
Motors
Corp.,
339
Mich.
546,
64
N.W.2d
691
(1954);
Ripley
v.
Bank
of
Skidmore,
355
Mo.
897,
198
S.W.2d
861
(1947);
Rainier's
Dairies
v.
Raritan
Valley
Farms,
19
N.J.
552, 117
A.2d
889
(1955);
Hugee
v.
Penn.
R.R.
Co.,
376
Pa. 286,
101
A,2d 740
(1954);
Peters
v.
Hall,
263
Wis.
450,
57
N.W.2d
723
(1953);
54
C.J.S.
Malicious
Prosecution
§
18
(1948).
1960]
102
UNIVERSITY
OF
MIAMI
LAW
REVIEW
injury
without
legal
justification.
4
It
also
may
exist
as
a
matter
of
law
(implied
malice)
5
which
is
a
mere
legal
fiction.6
Implied
malice
may
be
established
by
a
presumption
of
law,
in
relation
to
the
facts
of
the
case,
7
or may
be
inferred
from
want
of
probable
cause.
8
Probable
cause
consists
of
facts
and
circumstances
warranting
a
cautious
and
reasonable
man
in
the
honest
belief
that
his
action
and
the
means
taken
in
prosecution
of
it
are
just,
legal,
and
proper.
9
The
burden
of
proving
want
of
probable
cause
and
malice
is
on
the
plaintiff.
10
An
officer
arresting
the
wrong person based
upon
a
writ
properly
issued
under
legal
authority,"
may
be
held
liable
for
damages
if
all
of
the
essential
elements
of
this
action
are
present.
12
4.
Huffstutler
v.
Edge,
254
Ala. 102,
47
So.2d
197
(1950);
O'Brien
v.
Howell,
92
So.2d 608
(Fla.
1957);
Farish
v.
Smoot,
58
So.2d
534
(Fla.
1952);
Parker
v.
State,
124
Fla.
789,
169
So.
411
(1936);
Ramsey
v.
State,
114
Fla.
766,
154
So.
855
(1934);
John
B.
Stetson
Univ.
v.
Hunt,
88
Fla.
510, 102 So.
637
(1925);
54
C.J.S.
Malicious
Prosecution
§
41
(1948). Actual
malice
is
never
presumed,
but
must
be proved:
Berryman
v.
Sinclair
Prairie
Oil
Co.,
164
F.2d
734 (10th
Cir. 1947);
Davis
v.
Hearst,
160
Cal.
143,
116
Pac.
530
(1911);
54
C.J.S.
Malice
at
926
(1948).
5.
Montgomery
Ward
&
Co.
v.
Pherson,
129
Colo.
502,
272
P.2d
643 (1954);
Brown
v.
Guaranty
Estates
Corp.,
239
N.C.
595,
80
S.E.2d
645
(1954);
Hugee
v.
Penn.
R.R.
Co.,
376
Pa.
286,
101
A.2d
740
(1954);
54
C.I.S.
Malicious
Prosecution
,
41
(1948).
6.
Gudger
v.
Manton,
21
Cal.2d
537, 134
P.2d
217
(1943);
Chesapeake
Ferry
Co.
v.
Hudgins,
155
Va.
874,
156
S.E. 429
(1931).
This
is
predicated
on
the
doing
of
an
unlawful
act
or
the
doing
of
a
lawful
act
in
an
unlawful
manner.
Therefore,
it
cannot
exist
where
the
thing
done
is
lawful
and
the
means employed
are
lawful:
Nelson
v.
Melvin,
236
Iowa
604,
19
N.W.2d
685
(1945);
54
C.J.S.
Malice
at
913
(19487.
John
B.
Stetson
Univ.
v.
Hunt,
88
Fla.
510,
102 So.
637
(1925);
Rickman
v.
Safeway
tores,
124
Mont.
451,
227
P.2d
607
(1951);
Davis
v.
Tunlson,
168
Ohio
St.
471,
155
N.E.2d
904
(1959);
Stephens
v.
State,
145
Tex.
Crim.
100,
165
S.W.2d
721
(1942).
8.
Duval
Jewelry
Co.
v.
Smith,
102
Fla.
717,
136
So.
878
(1931);
Progressive
Life
Ins.
Co.
v.
Doster,
98
Ga.
App.
641,
106
S.E.2d
307
(1958);
Ferrell
v.
Livingston,
344
I11.
App. 488,
101
N.E.2d
599
(1951);
Earle
v.
Winne,
14
N.J.
119,
101
A.2d
62
(1953);
Vallon
v.
Ramage,
196
Misc.
740,
93
N.Y.S.2d
56
(Sup.
Ct,
1949). Although
malice
may
be
implied
from
want
of
probable
cause,
want
of
probable
cause
cannot
be inferred
from
malice:
McClinton
v.
Rice,
76
Ariz.
358,
265
P.2d
425
(1953);
Centers
v.
Dollar
Markets,
99
Cal.
App.2d
534, 222
P.2d
136
(1950);
Ward
v.
Allen,
152
Fla.
82,
11
So.2d
193
(1943);
Kennedy
v.
Crouch,
191
Md.
495,
62
A.2d
582
(1948);
Rivkind,
Malicious
Prosecution
in
Florida,
9
U.
MIAMI
L.Q.
1
(1954).
9.
Brock
v.
Southern
Pac.
Co.,
86
Cal.
App.2d
182,
195
P.2d
66
(1948);
Goldstein
v.
Sabella,
88
So.2d 910
(Fla.
1956); Harter
v.
Lewis
Stores, 240
S.W.2d
86
(Ky.
App.
1951);
54
C.J.S.
Malicious Prosecution
§
22
(1948).
10.
Metzenbaum
v.
Metzenbaum,
121
Cal. App.
64,
262
P.2d
596
(1953);
Glass
v.
Parrish,
51
So.2d 717
(Fla.
1951);
Rainier's
Dairies
v.
Raritan
Valley
Farms,
19
N.J.
552,
117
A.2d
889
(1955);
Vallon
v.
Ramage,
196
Misc. 740,
93
N.Y.S.2d
56
(Sup.
Ct.
1949);
Perry
v.
Hurdle,
229
N.C.
216, 49
S.E.2d
400
(1948);
Hugee
v.
Penn.
R.R.
Co.,
376
Pa. 286,
101
A.2d
740
(1954).
11.
S.
H.
Kress
&
Co.
v.
Powell,
132
Fla.
471,
180
So.
757
(1938);
Hawkins
v.
Reynolds,
236
N.C.
422,
72
S.E.2d
874
(1952);
Caudle
v.
Benbow,
228
N.C.
282,
45
S.E.2d
361
(1947);
Hobbs
v.
Ray,
18
R.I.
84,
25
AtI.
694
(1892);
4
Am.
JUR.
Arrest
§
132
(1936);
Rivkind,
Malicious Prosecution
in
Florida,
9
U.
MIAMi
L.Q.
1
(1954).
12.
In
Tatum
Bros.
Real
Estate
&
Inv.
Co.
v.
Watson,
92
Fla.
278,
109
So.
623
(1926),
the
court
stated
that
six
elements
must
be present
in
order
for an
action
for
malicious
prosecution
to
lie:
(1)
the
commencement
or
continuance
of an
original
civil
or
criminal
judicial proceeding;
(2)
its legal
causation
by
the
present
defendant
against
the
plaintiff
who
was
the
defendant
in
the
original
proceeding;
(3)
a
bona
fide
termination
in
favor
of
the
present
plaintiff;
(4)
the
absence
of
probable
cause
for
[VOL.
XV
CASES
NOTED
Judicial
and
quasi-judicial
officers
acting
within
the
scope
of
their
jurisdiction
are
exempted
from
liability
for malicious
prosecution,
even
though
they
have
acted
without
probable
cause
and with
malice.
13
However,
this
doctrine
of
immunity
does
not
extend
to
police
officers
or
other
ministerial
officers.1
4
An
action
of
false
imprisonment
lies
for
an
arrest,
or
some similar
detentive
act
of
the
defendant,
which
is
manifestly
illegal
in
that
the
legal
process
is
burdened
with
irregularity,
as
contrasted
to
malicious
prosecution
which
lies
for
a
prosecution
clearly
under
legal
authority.
5
It
is
a
complete
defense to
a
false
imprisonment
suit
to
show
that
the
arrest
or
detention
was
by
virtue
of
process,
legally
sufficient
in
form
and
not
void
on its
face,
and
duly
issued
by
a
court
or
official
having jurisdiction.'
i
False
imprison-
ment
may
be
brought
against
an officer
when
a
person
not
named
in
the
such
proceeding;
(5)
the
presence
of
malice
therein;
(6)
damage
conforming
to
legal
standards
resulting
to
the
plaintiff.
Nolan
v.
Allstate
Home
Equip.
Co.,
149
A.2d
426
(D.C.
Munic.
Ct.
1959);
Glass
v.
Parrish,
51
So.2d
717
(Fla.
1951);
Ward
v.
Allen,
152
Fla.
82,
11
So.2d
193
(1943);
Duval
Jewelry
Co.
v.
Smith,
102
Fla.
717,
136
So.
878
(1931);
Shelton
v.
Barry,
328
11.
App. 497,
66
N.E.2d
697
(1946);
Losi
v.
Natalicchio,
112
N.Y.S.2d
706 (Sup.
Ct.
1952);
Hill
v.
Carlstrom,
216
Ore.
300,
338
P.2d
645
(1959);
Byers
v.
Ward,
368
Pa. 416,
84
A.2d
307
(1951);
Elmer
v.
Chicago
&
N.
W.
Ry.
Co.,
257
Wis.
228,
43
N.W.2d
244
(1950);
Rivkind,
Malicious
Prosecution
in
Florida,
9 U.
MIAMI
L.Q.
1
(1954);
54
C.I.S.
Malicious
Prosecution
.
4
(1948).
13.
Cooper
v.
O'Connor,
69
App.
D.C,
100, 99
F.2d
135
(1938);
Anderson
v.
Rober,
3
F.
Supp.
367
(D.C.
1933);
White
v.
Towers,
235
P.2d
209
(Cal.
1951);
Prentice
v.
Bertken,
50
Cal.
App.2d
344,
123
P.2d
96
(1942);
White
v.
Brinkman,
23
Cal.
App.2d
307,
73
P.2d
254
(1937);
Pearson
v.
Reed,
6
Cal.
App.2d
277,
44
P.2d
592
(1935);
Smith
v.
Parman,
101
Kan.
115, 165
Pac.
663
(1917);
Mitchelle
v.
Steele,
39
Wash.2d
473, 236
P.2d
349
(1951);
Anderson
v.
Manley,
181
Wash.
327,
43
P.2d
39
(1935);
Ex
parte
Bentine,
181
Wis.
579,
196
N.W.
213
(1923);
Compare,
where
liability
is
imposed
upon
officers
who
act
beyond
the
scope
of
their authority: Earl
v.
Winne,
14
N.J.
119,
101
A.2d
535
(1953);
Hoppe
v.
Klapperich,
224
Minn.
224,
28
N.W.2d
780
(1947).
14.
In
Prentice
v.
Bertken,
50
Cal.
App.2d
344, 350,
123
P.2d
96, 99 (1942),
the
court stated,
"No
case
has been cited,
and
we
have
been
unable
to
discover
any,
in
which
a
police
or
peace officer
was
held
to
be
exempt
from
civil
liability
in
an
action
for
malicious
prosecution,
where
be
has
acted
maliciously
and
without
probable
cause.";
Johnson
v.
Moser,
181
Okla.
75,
72
P.2d
715 (1937).
15.
George
v.
Leonard,
71
F.
Supp.
662
(E.D.S.C.
1947);
Riegal
v.
Hygrade
Seed
Co.,
47
F.
Supp.
290
(W.D.N.Y.
1942);
Singleton
v.
Perry,
45
Cal.2d
489,
289
P.2d
794
(1955);
Dodson
v.
Solomon,
134
Fla.
284,
183
So.
825
(1938);
Barfield
v.
Marron,
222
La.
210,
62
So.2d
276
(1952);
Earl
v.
Winne,
14
N.J.
119,
101
A.2d
535
(1953);
Goodman
v.
Frank
&
Seder of
Philadelphia
Inc.,
70
D.
&
C.
622
(Philadelphia
County
1950);
Dallas
Joint
Stock
Land
Bank of
Dallas
v.
Britton,
134
Tex.
529,
135
S.W.2d
981
(1940);
Murphy
v.
Martin,
58
Wis.
276,
16
N.W.
603
(1883);
The
gravamen
of
false
imprisonment
is
the
unlawful
detention
of
another
without
his
consent.
Hobbs
v.
Ray,
18
R.I.
84,
25
Atl. 694
(1892);
4
AM.
JUR.
Arrest
§
132
(1936);
1
JArCARD,
TORTS
§
146 (1895).
16.
Jackson
v.
Osborn,
254
P.2d
871
(Cal.
App.
1953);
Elwell
v.
Reynolds,
6
Kan.
App.
545,
51
Pac.
578
(1897);
Lepre
v.
Kessler,
206
Misc.
60,
134
N.Y.S.2d
286 (Sup.
Ct.
1954);
Mudge
v.
State,
45
N.Y.S.2d
896
(Ct.
Cl.
1944).
The
burden
of
proof
to
establish
reasonable
grounds
for
the
arrest
is
upon
the defendant:
Coyne
v.
Nelson,
237
P.2d
45
(Cal. App.
1951);
Blocker
v.
Clark,
126
Ga.
484,
54
S.E.
1022
(1906);
Muniz
v.
Mehlman,
327
Mass.
353,
99
N.E.2d
37
(1951);
Vallon
v.
Romage,
196
Misc.
740,
93
N.Y.S.2d
56
(Sup.
Ct.
1949);
Johnson
v.
Reddy,
163
Ohio
St.
347,
126
N.E.2d
911
(1955);
4
AM.
JUR.
Arrest
§
118
(1936).
1960]
UNIVERSITY
OF
MIAMI LAW
REVIEW
[VOL.
XV
warrant
is
wrongfully
arrested.
7
If
the
officer
arrests
the
right
party
under
a
warrant
issued
in
the
name
of
another
person,
this
action
will
lie.",
In
case
the
arrest
is
made
without
a
warrant
and
the
offense
complained
of
does
:not
amount
to
a
crime,
19
or
when
the
wrong
person
arrested
has
the
same
name
as
the
party
intended
to
be
arrested,
false
imprisonment
is
the
proper
action.
20
The
mistake
of
the
officer
in
arresting
the
wrong
person
will
not
be
an
absolute
defense,
but
may
go
in
mitigation
of
damages.
2
1
In
the
instant
case,
2
2
the
court
discussed
the
public
policy
aspects
of
expanding
the
field
of
liability
for
wrongful
arrest
by
a
public
officer
to
an
action
in
negligence.
Adhering
to
the
rationale
expressed
in
another
jurisdiction,
2
3
the
court
stated
that
"the
protection
of
society
from
crime
17.
Ryburn
v.
Moore,
72
Tex.
85,
10
S.W.
393
(1888);
I-lays
v.
Creary,
60
Tex.
445
(1883);
Melton
v.
Rickman,
225
N.C.
700,
36
S.E.2d
276
(1945)
(dictum);
See
also
George
v.
Leonard,
71
F.
Supp.
662
(E.D.S.C.
1947)
(approving
dictum
in
Melton).
18.
West
v.
Cabell,
153
U.S.
78
(1894);
4
Am.
JuR.
Arrest
§
132
(1936).
19.
Adair
v.
Williams,
24 Ariz.
422, 210
Pac.
853
(1922);
Standard
Sur.
&
Cas.
Co.
of
N.Y.
v.
Johnson,
74
Ga.
App.
823,
41
S.E.2d
576
(1947);
Filer
v.
Smith,
96
Mich.
347,
55
N.W.
999
(1893);
Gill
v.
Montgomery
Ward
&
Co.,
129
N.Y.S.2d
288
(App.
Div.
1954);
Formalt
v.
Hylton,
66
Tex.
85,
1
S.W.
376
(1886).
An
officer
will
not
be liable
for
false
arrest
if
he
arrests
a
person
without
a
warrant
provided
the
officer
has reasonable
ground
to
believe
that
a
felony
has been
committed:
American
Ry.
Exp.
Co.
v.
Summers,
208
Ala.
531,
94
So.
737
(1922);
PROSSER,
TORTS
§
26 (2d
ed.
1955).
20.
When
an
officer,
pursuant
to
valid
process,
with
due
diligence
arrests
a
man
bearing
the
same
name
as
the
one
mentioned
in
the
process,
honestly
believing
that
he
is
arresting
the
person
intended,
he
cannot
be
held
liable
for
false
imprisonment.
Schneider
v.
Kessler,
97
F.2d
542
(3d
Cir.
1938);
accord,
Inmon
v.
Miss.,
278
Fed.
23
(5th
Cir. 1922);
Kalish
v.
White,
36
Cal.
App. 604,
173
Pac.
494
(1918);
Blocker
v.
Clark,
126
Ca.
484,
54
S.E.
1022
(1906).
In
Blocker
v.
Clark,
supra,
the
court
stated
that
if
an
officer
arrests
a
person
bearing
the
same
name
stated
in
the
warrant,
and
there
is
only
one person
bearing
that
name
in
the
area
of
the
officer,
the
officer
will
be
protected
in
making
the
arrest; while
if
there
are
two
or
more
persons
of
the
same
name
within
the
territory,
the
officer
should
make
a
diligent
identity
of
the
person
named
in
the
warrant.
If
after
making
such
inquiry
he
arrests
a
person
in
good
faith,
believing
him
to
be
the
person
named
in
the
warrant,
the
rule seems
to
be
that
the
officer
will
be
protected.
Accord,
King
v.
Robertson,
227
Ala.
378,
150
So.
154
(1933).
In
Wolf
v.
Perryman,
82
Tex.
112,
123,
17
S.W.
772,
777
(1891),
where
the
wrong
man
with
the
same
name
as
the
intended
was
arrested,
the court
stated.
"the
defendants
had
time and
opportunity
to
investigate
as
to
the
legality
and
reasonable
grounds
of
holding
appellant
as
a
felon.
They
failed
to
investigate,
or
if
they
investigated,
they
disregarded
the
plain,
evident
truth,
and
still
on
speculation
held
him."
It
seems
evident
from
authority
that
an
officer
arresting
the
wrong
person
with
the
same
name
as
the
intended
will
be
held
liable
for
failure
to
make
a
diligent
investigation
and
bona
fide
identification
of
the
person
named
in
the
warrant:
Walton v.
Will,
66
Cal. App.2d
509, 152
P.2d
639
(1944);
Clark
v.
Winn,
19
Tex.
Civ.
App.
223,
46
S.W.
915
(1898).
21.
Simpson
v.
Boyd
221
Ala.
14,
101
So.
664
(1924);
Goodwin
v.
Allen,
89
Ga.
App.
187,
78
S.E.2d
804
(1953);
Standard
Sur.
&
Cas.
Co.,
of
N.Y.
v.
Johnson,
74
Ga.
App.
823,
41
S.E.2d
576
(1947);
Mitchell
v.
Malone,
77
Ga.
301
(1886);
Formwalt
v.
Hylton,
66
Tex.
288,
1
S.W.
376
(1886);
1-lays
v.
Creary,
60
Tex.
445
(1883);
22
AM.
JUR.
False
Imprisonment
§
109
(1939).
22.
118
So.2d
101
(Fla.
App.
1960).
23.
In
Atkinson
v.
Birmingham,
44
R.I.
123,
128, 116
Atl.
205,
207
(1922),
the
court
stated
that
". . .
public
policy
requires
the protection
of
those
who
in
good
faith
and
upon
reasonable
ground
have
instituted
criminal
proceedings.
This
perhaps
CASES
NOTED
would
likely
be
adversely
affected
if
law
enforcement
agents
were
subject
to
liability
...
for
simple
negligence
in
the
performance
of
their
duties
...
*"24
More
cogent
weight
was
given
to
this
rationale
than
to
the
opposing
theory
25
which
adopts
the
belief
that
citizens
should
be
given
greater
protection
against
the
irresponsible
institution
of
civil
or
criminal
proceedings.
The
court
refused to
extend
the
field
of liability
for
the
careless
performance
of an
officer
in
causing
the
issuance of
an
arrest
warrant
from
an
intentional
tort
action
(malicious
prosecution)
to
an
unintentional
tort
action
(negligence)
.26
The
court
deserves
commendation
for
its
determination
that
law
enforcement
officers
require
protection
and
immunity
from
liability
in
negligence
for
improperly
causing
the
issuance
of an
arrest
warrant.
27
This
decision
reduces
the
officer's
apprehension
of
constant
law
suits
and
increases
his
efficiency.
28
The
fear
that
responsible,
capable
men would
not
accept
public
office
because
of
the
threat
of
personal
liability
is
also
diminished.
29
To
expand
the
field
of
liability
to
unintentional
tort
would
seriously
cripple
the
effective
administration
of
public
safety
against
crime.
STANTON
S.
KAPLAN
COURTS
-APPEALS
FROM
ADMINISTRATIVE
BOARDS
The
appellees
applied
to
the
Pinellas
County
Water
and
Navigation
Control
Authority
for
a
permit
to
fill
certain
submerged
lands.
The
appellants
excepted
to
a
ruling
in
favor
of
the
appellees,
and
an
appeal
was
taken
to
the
circuit
court
which
affirmed
the
order
of
the County
Authority.
The
appellants
thereupon
appealed
to
the
district
court
of
appeal
which
ruled
that
it
did
not
have
authority
to
entertain
the
appeal
as
such
but
would
treat
it
as
a
petition
for
certiorari.
Upon
review
by
the
Florida
Supreme
Court,
held,
the
circuit
court
sat
as
a
"trial
court"
for
purposes
of
the
constitutional
provision
giving
district
courts
of
appeal
amounts
to no
more
than
saying
that
no
one
shall
be
found
liable
for
instituting
a
criminal
prosecution
unless
.. .
he
acted
without
probable
cause
and
with
malice."
(Negligent
arrest
was
not
at
issue
in
this
case).
24. See
note
22
supra
at
105.
25.
In
Melvin
v.
Pence,
76
U.S.
App.
D.C.
154,
159, 130
F.2d
423, 428
(1942),
an
action
by
a
private detective
against private
citizens
for
instigating
the
revocation
of
the plaintiff's
license,
the
court stated
that
"While
members
of
the
public
should
be
carcful
not
to
make
unfounded
charges
of
criminal
conduct,
it
is
better
that
some
charges
be
made
than
that
persons
having
the
knowledge
of
the
commission
of
a
crime
or
reasonable
ground
for
believing
it
has
been
committed
shall be
deterred
from
reporting
it
to
the
proper
officials
by
fear
of
civil
liability
for
doing
so."
26.
See
note
22
supra
at
105.
27.
See
note
22
supra
at
104.
28.
Keefe,
Personat
Tort
Liability
of
Administrative
Officials,
12
FoRnHAMI'
L.
R
v.
130
(1943).
29.
Ibid.
1960]
