Barton v. Woodward

• Decision Date: 11 July 1919
• Citation: 182 P. 916,32 Idaho 375
• Parties: C. A. BARTON, Respondent, v. I. R. WOODWARD and J. C. WOODWARD, Appellants
• Court: Idaho Supreme Court

182 P. 916

32 Idaho 375

C. A. BARTON, Respondent, v. I. R. WOODWARD and J. C. WOODWARD, Appellants

Supreme Court of Idaho

July 11, 1919

MALICIOUS PROSECUTION-LUNACY PROCEEDING-STATUTES OF LIMITATION-PROBABLE CAUSE-INSTRUCTIONS-EVIDENCE.

1. An action for malicious prosecution does not fall within the provisions of C. L., sec. 4055, subds. 4 and 5.

2. An action for malicious prosecution lies against one who institutes a lunacy proceeding against another, maliciously and without probable cause.

3. Whether the trial court erred in submitting the question of probable cause to the jury is not before the court when the instructions are not in the record.

4. Judgment on the merits for the defendant in a lunacy proceeding is not evidence of want of probable cause.

5. In an action for malicious prosecution it is incumbent upon the plaintiff to prove want of probable cause by preponderance of the evidence, and this may not be shown by proof of malice.

6. In an action for malicious prosecution certificates admitting plaintiff to practice medicine in other states are not admissible in the absence of evidence tending to show his intention to engage in the practice there.

[As to malicious prosecution cases in which action will lie, see note in 93 Am.St. 456]

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. R. N. Dunn, Presiding Judge.

Action for malicious prosecution of a lunacy proceeding. Judgment for plaintiff. Reversed.

Reversed and remanded, with instructions. Costs awarded to appellants.

Alfred A. Fraser and John H. Norris, for Appellants.

The complaint, upon its face, showed that the cause of action was barred by subd. 5, sec. 4055, Rev. Codes. The action, as shown by the complaint, was brought for an injury to the person of the plaintiff, and in such cases an action for malicious prosecution is always held to be an action for an injury to the person. (Makatawahquatwa v. Revok, 111 F. 12; Porter v. Mack, 50 W.Va. 581, 40 S.E. 459; Noonan v. Orton, 34 Wis. 259, 17 Am. Rep. 441; Bryant v. American Surety Co., 69 Minn. 30, 71 N.W 826; Kelly v. Western Union Tel. Co., 17 Tex. Civ. 344, 43 S.W. 532; 13 Ency. Pl. & Pr., 2426.)

"In order to maintain an action for malicious prosecution, it is incumbent on plaintiff to show want of probable cause on the part of defendant in commencing the prosecution." (Russell v. Chamberlain, 12 Idaho 299, 9 Ann. Cas 1173, 85 P. 926; Taylor v. Baltimore & Ohio Ry. Co., 18 Ind.App. 692, 48 N.E. 1044; Richards v. Jewett Bros. &amp Co., 118 Iowa 629, 92 N.W. 689.)

From want of probable cause, malice may be inferred, but from malice, even if express, want of probable cause cannot be inferred. (Stone v. Crocker, 41 Mass. (24 Pick.) 81; Parker v. Farley, 64 Mass. (10 Cush.) 279; Eickhoff v. Fidelity & Casualty Co., 74 Minn. 139, 76 N.W. 1030; Hicks v. Brantley, 102 Ga. 264, 29 S.E. 459; Tumalty v. Parker, 100 Ill.App. 382; Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116, see, also, Rose's U.S. Notes.)

In an action for malicious prosecution, defendants are not liable, no matter how vindictive they may have acted nor what their motives may have been if they acted with probable cause. (Staunton v. Goshorn, 94 F. 52, 36 C. C. A. 75; Grant v. Moore, 29 Cal. 644.)

An acquittal in a criminal prosecution is not, per se, prima facie evidence in an action for malicious prosecution arising out of such prosecution of want of probable cause for instituting the prosecution, and standing alone is insufficient to sustain a holding of want of probable cause. (Kansas etc. Coal Co. v. Galloway, 71 Ark. 351, 100 Am. St. 79, 74 S.W. 521; Thompson v. Beacon Valley Rubber Co., 56 Conn. 493, 16 A. 554; Anderson v. Friend, 85 Ill. 135; Bitting v. Ten Eyck, 82 Ind. 421, 42 Am. Rep. 505; Philpot v. Lucas, 101 Iowa 478, 78 N.W. 625; Laing v. Mitten, 185 Mass. 233, 70 N.E. 128; Shafer v. Hertzig, 92 Minn. 171, 99 N.W. 796; Boeger v. Langenberg, 97 Mo. 390, 10 Am. St. 322, 11 S.W. 223; Young v. Lyall, 23 N.Y. St. 215, 5 N.Y.S. 11; Fox v. Smith, 26 R. I. 1, 3 Ann. Cas. 110, 57 A. 932.)

Thompson & Bicknell, for Respondent.

An action for malicious prosecution is not one for an injury to the person within the meaning of sec. 4055, Rev. Codes, but such an action comes within the provisions of sec. 4053: "An action upon a contract, obligation or liability not founded upon an instrument of writing." (Piller v. Southern P. R. R. Co., 52 Cal. 42; Sharp v. Miller, 54 Cal. 329; Wood v. Currey, 57 Cal. 208.) Actions for malicious prosecution not being specifically mentioned in the Idaho statutes of limitation, must come within sec. 4053 of the Idaho Code under the authority of the California courts.

To prove want of probable cause is to prove a negative, and in such cases slight proof is all that is required. (Olson v. Tvete, 46 Minn. 225, 48 N.W. 914; Chapman v. Dodd, 10 Minn. 350.)

MCCARTHY, District Judge. Morgan, C. J., concurs. BUDGE, J., Concurring in Part and Dissenting in Part.

OPINION

MCCARTHY, District Judge.

--This is an action to recover damages for malicious prosecution of a lunacy proceeding.

A demurrer was filed to the complaint on two grounds; first, that it did not state facts sufficient to constitute a cause of action, and, second, that the action was barred by C. L., sec. 4055, subds. 4 and 5. The statutes of limitation were also pleaded in the answer. The cause was tried to a jury, and resulted in a verdict and judgment for plaintiff. This appeal is from the judgment.

The record discloses that a hearing was had before the probate judge on April 21, 1911, and on the same day respondent was discharged. This action was commenced on August 5, 1913. Appellants contend that the action is barred by subds. 4 and 5, C. L., sec. 4055, which limit the time within which certain actions may be brought to two years and which are as follows:

"4. An action to recover damages for an injury to the person, or for the death of one caused by the wrongful act or neglect of another.

"5. An action for libel, slander, assault, battery, false imprisonment or seduction."

It is urged that the action is for an injury to the person, or that it is so closely akin to an action for libel or slander as to make the statute with reference thereto applicable.

While it may be said that an action for malicious prosecution bears a strong resemblance to an action for libel (Briggs v. Garrett, 111 Pa. 404, 56 Am. Rep. 274, at 281, 2 A. 513; Chapman v. Calder, 14 Pa. 365; 26 Cyc. 7 and 8), they are not identical.

The cases which have been cited in an endeavor to show that a malicious prosecution is an injury to the person, construe statutes which contain language not found in ours, and are, consequently, of little assistance in reaching a correct interpretation of the subdivision relied on.

C. L., sec. 4055, subd. 4, fixing two years as the period of limitation, prior to amendment, contained the following provision: "An action to recover damages for the death of one caused by the wrongful act of another." Subd. 4 was amended by Sess. Laws 1903, p. 56, so as to contain the provision herein first quoted.

Construing the statute as amended in the light of the law as it was prior to amendment, it is clear that this subdivision was originally designed to limit the time of commencement of actions for physical injuries resulting in death, and that the amendment was made to extend the statute to include and to limit actions based upon like injuries which did not result in death. It follows that the present action is not barred by either subd. 4 or 5 of sec. 4055, supra.

The contention with respect to the general demurrer is that respondent has no cause of action against either of the appellants, for the reason that he was not charged with, nor prosecuted for, any crime, that no civil action was commenced or prosecuted against him, and that this action will only lie where there has been a malicious prosecution of a criminal or civil action. While there are authorities which go the extent of so holding, the modern and better rule is to the effect that an action for malicious prosecution will lie against one who has maliciously, and without probable cause, instituted lunacy proceedings against another. (Lockenour v. Sides, 57 Ind. 360, 26 Am. Rep. 58; Kellogg v. Cochran, 87 Cal. 192, 25 P. 677, 12 L. R. A. 104; Griswold v. Griswold, 143 Cal. 617, 77 P. 672; 26 Cyc. 14.)

Appellants contend that the court erred in submitting the question of probable cause to the jury, but as the instructions are not before us, the record presents no such question for review.

Appellants specify the insufficiency of the evidence to support the verdict and judgment. In this connection it may be said there are decisions to the effect that the discharge of the defendant on preliminary examination is prima facie evidence of want of probable cause. Without discussing the soundness of that rule, it may be said it has no application to this case. The hearing had before the probate judge was a final trial, not a preliminary examination, and even these authorities do not go so far as to hold that a verdict or judgment of acquittal on the merits constitutes proof of want of probable cause for the commencement of the action. (26 Cyc. 40c.)

In a trial on the merits in a civil or criminal case, or in a lunacy proceeding, the question of probable cause is not passed on by the court, judge or jury, nor is it the criterion of the decision or verdict. The decision is on the merits, and if the defendant wins, it simply means that the plaintiff has not proved his case by the preponderance of the evidence or beyond a reasonable doubt. Therefore, the verdict or decision has no logical bearing on the question of probable cause and...