Binger v. Wildman, 5859.

• Decision Date: 29 January 1934
• Docket Number: No. 5859.,5859.
• Citation: 69 F.2d 125
• Parties: BINGER v. WILDMAN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

69 F.2d 125 (1934)

BINGER v. WILDMAN.

No. 5859.

Court of Appeals of the District of Columbia.

Decided January 29, 1934.

Leo P. Harlow and Marshall H. Lynn, both of Washington, D. C., for appellant.

W. Gwynn Gardiner and George A. Maddox, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

HITZ, Associate Justice.

This appeal is brought by Binger, the defendant below, from a judgment on a verdict in an action for malicious prosecution.

This action was a sequel to an automobile collision between the parties in Maryland.

On the evening of August 11, 1928, Binger, who is a resident of Maryland, with a place of business in the District of Columbia, was being driven home by his son's wife, and after their engine failed, they were taken in tow by the son with a truck.

Wildman was returning from his business in Maryland to his residence in Washington, and collided with Binger's car at a point in Prince Georges county several miles beyond the District line.

The collision occurred in darkness and rain, and the stories told by the parties thereto differ even more widely than such stories commonly do, as each says that he was disabled for a considerable time at the point of collision, while the other continued on his ruthless way, without offering assistance or giving his name.

But no one was injured, and each car ultimately reached its destination, the one in tow as before the collision and the other by its own power.

Binger promptly procured a Maryland warrant for the arrest of Wildman for violating a Maryland traffic regulation at the time of the collision, while Wildman sued Binger in the county court for negligent damage to his automobile.

This warrant was never served, and subsequently Binger by his affidavit procured a warrant of arrest charging against Wildman an assault with a deadly weapon, the weapon being his automobile as used in the collision.

This charge was an extradictable matter, and Wildman was arrested in Washington by Washington officers, and turned over to Maryland officers, by whom he was taken into Maryland and there released upon bond to appear for preliminary hearing before a justice of the peace.

This warrant, arrest, and confinement constitute the basis for this action in malicious prosecution. The preliminary hearing on the assault charge in Maryland seems to have been continued on several occasions, on each of which Wildman appeared with witnesses, but neither Binger nor the prosecuting officer appeared until November 20, when Binger appeared alone; the prosecuting officer did not appear; and Wildman attended with his attorney and three witnesses, being his father, his uncle, and his brother-in-law.

This hearing was held at night; an agreement of some sort was reached after conference among the parties; but no record thereof was made; and here again, as in the matter of the collision, their testimony is so hopelessly conflicting that both parties cannot be telling the truth.

On this day, before the hearing, two further warrants were issued by the magistrate on the oath of Binger for the arrest of Wildman on traffic charges based upon the collision.

These warrants were delivered to an officer present at the hearing, but were never served, and were withdrawn or dismissed of record the same evening.

The magistrate's records show that the warrant for assault was also dismissed on the same day, but do not show the hour of such dismissal, and the testimony of the magistrate leaves it uncertain whether the assault charge was dismissed before or after the agreement of the parties, which is a matter of controlling importance in the case.

In any event, no hearing was ever had before the magistrate in Maryland, but all warrants of arrest were there dismissed, and the civil suit for damages pending in the county seat was also dismissed.

In the malicious prosecution suit at Washington, Wildman and his witnesses testified that his attorney in the Maryland controversy, who was an experienced counsel, at the conference in or near the magistrate's court, and in the presence and hearing of Binger, stated that the assault charge had then already been dismissed; that Binger had procured that warrant only for purposes of extradition and not for prosecution, in order that the minor traffic warrants could be served in Maryland; that these warrants were then in the hands of the officer present for service; that upon them Wildman was to be then arrested, when he might be admitted to bail or might be taken to the county seat and jailed for hearing upon the traffic charges the next day; upon the trial of which he should surely be convicted and fined an amount equal or greater than the damages claimed in his negligence suit; that such procedure was common in such controversies; that a nonresident defendant — particularly a Washington motorist — had no chance of success in such litigation in Prince Georges county; and that his best course was a compromise on the best terms then obtainable.

Wildman testified that it was thereupon agreed that he should dismiss his damage suit and that Binger should dismiss the two traffic warrants, which agreement was performed on both sides. But that this agreement neither contemplated nor produced any action on the assault charge, which had been dismissed before the conference of the parties, and that his right to sue for false arrest or malicious prosecution was not discussed or compromised.

Binger testified that he neither participated in, nor was present at, the conference; nor overheard anything that was said by the participants; that he remained in the magistrate's office while the other interested parties removed to another room, and that from time to time Wildman's attorney came to him with offers or suggestions looking to a settlement of the entire controversy, including the assault charge and any right of action growing out of it; that such an agreement was finally reached; the assault charge was thereafter dismissed along with the other warrants, and the action for malicious prosecution was subsequently instituted in violation of the agreement.

Wildman's...