183 P. 325 | Utah | 1919
Lead Opinion
The plaintiff was convicted upon the complaint of defendant in the city court of Salt Lake City of the offense of willfully and knowingly having in his possession intoxicating liquor. Plaintiff appealed from the judgment to the district court of Salt Lake county, in which said court, upon motion of the city attorney, the plaintiff was found not, guilty and the action dismissed. Plaintiff brought this action against the defendant charging malicious prosecution in the above proceeding.
This appeal is from a judgment sustaining defendant’s demurrer to plaintiff’s complaint and dismissing the action.
The complaint, in substance, alleges that defendant maliciously, and without probable cause, procured a criminal complaint to be prepared against the plaintiff, and without probable cause swore to the same; that the said criminal complaint was sworn to by-defendant charging plaintiff with unlawfully, willfully, and knowingly having in his possession intoxicating liquor, to wit, cider containing an excess of one-half of one per centum of alcohol, contrary to the ordinances of said city; that thereafter defendant, by reason of said complaint, maliciously and without probable cause procured a warrant for the arrest of plaintiff, and caused him to be arrested and deprived of his liberty; that all of the material allegations set forth in the affidavit made by defendant were false and untrue, and were made by defendant maliciously, with no sufficient provocation, without probable cause therefor, and without any personal knowledge on the part of the defendant of the facts therein sworn to, and without sufficient investigation to obtain knowledge concerning the same; that said complaint was made by defendant for the sole and only purpose of embarrassing, humiliating, and distressing plaintiff and injuring
Defendant interposed a general demurrer to the complaint, specifying in particular the fact that it appeared from the complaint that plaintiff was convicted of the offense charged in the city court, and notwithstanding it appeared that said conviction was reversed in the district court on appeal, it did not appear by any allegation that said conviction in the city court was procured by perjury or fraud.
The district court sustained the demurrer, and judgment was entered, dismissing the action. Plaintiff appeals.
The record presents but two questions for our consideration. (1) In án action for malicious prosecution, where the complaint alleges a conviction and afterwards an acquittal in the proceeding complained of, is it essential that the complaint should also allege that the conviction was procured by fraud or perjury, or other undue means? (2) If such allegation is essential, is the complaint in the case at bar fatally defective in this regard?
In an action for malicious prosecution at least three distinct matters are necessary to be alleged and proved: (1) that the proceeding complained of as ground for the action was without probable cause; (2) that the proceeding was malicious; and (3) that the proceeding was finally terminated
The authorities cited and relied on by respondent are as follows: Whitney v. Peckham, 15 Mass. 243; Griffis v. Sellars, 19 N. C. 492, 31 Am. Dec. 422; Price v. Stanley, 128 N. C. 38, 38 S. E. 33; Smith v. Thomas, 149 N. C. 100, 62 S. E. 772; Herman v. Brookerhoff, 8 Watts (Pa.) 240; Olson v. Neal, 63 Iowa, 214, 18 N. W. 863; Saunders v. Baldwin, 112 Va. 431, 71 S. E. 620, 34 L. R. A. (N. S.) 958, and note, Ann. Cas. 1913B, 1049; Crescent City, etc., Co. v. Butchers’ Union, etc., Co., 120 U. S. 141, 7 Sup. Ct. 472, 30 L. Ed. 614; Bacon v. Towne, 4 Cush. (Mass.) 217; Burt v. Place, 4 Wend. (N. Y.) 591; Spring v. Besore, 12 B. Mon. (Ky.) 551; Thomas v.
The following cases are relied on by appellant: Bowman v. Brown, 52 Iowa, 437, 3 N. W. 609; Moffatt et al. v. Fisher, 47 Iowa, 473; Goodrich v. Warner, 21 Conn. 443.
In addition to these, the decisions that could be cited to the same effect are almost numberless, as will appear from the eases and notes specifically referred to. That the authorities are not in complete harmony will be found upon the most casual examination. The Minnesota court, in Skeffington v. Eylward, 97 Minn. 244, 105 N. W. 638, 114 Am. St. Rep. 711, divides the cases into three classes: (1) Those which hold that a conviction is conclusive evidence of probable cause, notwithstanding a reversal on appeal; (2) those in which it is held that a judgment of conviction, notwithstanding a reversal, can only be impeached by evidence that it was procured by fraud or perjury; and (3) those which hold that a judgment of conviction when reversed on appeal is only pri-ma facie evidence which may be rebutted by any competent evidence which clearly overcomes the presumption arising from the effect of the conviction in the first instance. The writer, after a somewhat careful review pf a large number of cases, including those,cited, is of the opinion that the above classification by the Minnesota court is substantially correct. Conceding this to be true, there is no escape from the conclusion that a judgment of conviction, followed by 2-4 a reversal, when offered as evidence in a case for mali
This brings us to a consideration of the question as to whether or not the complaint in the present case is fatally defective in this respect. Before proceeding, however, to determine that question it is pertinent to make one or two observations upon other matters intimately connected with the question under review. All of the authorities which we have examined permit evidence of conviction for the purpose of proving probable cause. This is so because when one party is charged with prosecuting another without probable cause the most satisfactory evidence that there was probable cause would be a judgment of conviction, fairly obtained before an unbiased court or jury. This is so manifest as, in our judgment, to be uncontrovertible. But suppose the judgment of conviction was procured by perjury or fraud, or by any means which show that the judgment is invalid, unauthorized, and of no efficacy whatever as evidence of probable cause. Could it then be contended that such a judgment has probative value to establish probable cause? We have no hesitancy in holding that in such a case the probative effect of the judgment is entirely overcome, and that it stands in the case the same as if it had never been rendered. Suppose that the judgment was procured by testimony that was admittedly false and untrue. Should such a judgment in a case of this kind be given effect as proof of probable cause ? Clearly not. And eyen though the testimony was not given willfully
"The reason that a conviction procured by perjury is not proof of the existence of probable cause for the prosecution is that the false testimony deceived the trial court, so that the inference naturally drawn from a judgment of that court is no longer a reasonable inference.”
, This states the proposition in a nutshell. It is the falsity of the testimony and its tendency to deceive and mislead the court that vitiates the judgment and renders it ineffective when offered as evidence of probable cause, whether the testimony was willful and corrupt or given honestly and in good faith.
This brings us to a consideration of such portions of the complaint as are material to the question before us. After quoting in full the affidavit filed by the defendant against the plaintiff upon which the warrant of arrest was issued out of the city court the complaint of plaintiff, in the fourth paragraph, alleges:
"Plaintiff further alleges that all the material allegations of fact set forth in said affidavit of said defendant as hereinbefore set forth were false and untrue, and were made by defendant malicious and with no sufficient provocation or probable cause therefor, and were made by defendant without any personal knowledge of the facts therein sworn to, and without sufficient investigation to obtain knowledge concerning the truth of the facts set out, contained, and sworn to in said complaint, and were made by said defendant for the sole and only purpose of embarrassing, humiliating, and distressing this plaintiff and injuring him in his person and good name, and in his property, and were made by said defendant as plaintiff is informed and believes, and therefore alleges, with the object and purpose of injuring plaintiff’s- said business.”
It is also alleged in the fifth paragraph of the complaint that a trial was had of said cause, and plaintiff was adjudged to be guilty of violating the law as charged, in. said complaint,
‘Wiithout commenting in detail as to the meaning and effect of these allegations, it is sufficient to say they charge in effect that the whole proceeding against the plaintiff
In arriving at this conclusion we have not deemed it necessary .to quote from or comment at length upon particular cases. They speak for themselves, and we are satisfied that the conclusion reached is within the spirit and intention of the best-reasoned opinions.
The ease is therefore remanded to the district court of Salt Lake county, with directions to said court to reinstate plaintiff’s complaint, ^overrule the demurrer interposed thereto, permit defendant to file an answer to said complaint upon such terms as may be just, and proceed with the hearing of said cause. Appellant to recover costs on appeal.
Rehearing
ON APPLICATION FOR REHEARING.
In his application for a rehearing respondent cites many
The application for a rehearing is denied.
