Carter v. Davison

• Court: Wyoming Supreme Court
• Writing for the Court: PARKER
• Citation: Carter v. Davison, 359 P.2d 990 (Wyo. 1961)
• Decision Date: 28 February 1961
• Docket Number: No. 2912,2912
• Parties: Marvin CARTER and Clarence Carter, Appellants (Plaintiffs below), v. Fred DAVISON, Robert Hayden and Harris Swartz, Appellees (Defendants below).

Page 990

359 P.2d 990

Marvin CARTER and Clarence Carter, Appellants (Plaintiffs below), v. Fred DAVISON, Robert Hayden and Harris Swartz, Appellees (Defendants below).

No. 2912.

Supreme Court of Wyoming.

Feb. 28, 1961.

Rehearing Denied May 3, 1961.

R. G. Diefenderfer, Sheridan, for appellants.

John P. Ilsley, Gillette, for appellees.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

Marvin and Clarence Carter brought an action for malicious prosecution against Fred Davison, Robert Hayden, and Harris Swartz, alleging that some time between January 19, 1957, and February 27, 1957, the defendants unlawfully, maliciously, and without probable cause conspired together to injure plaintiffs and that in accordance therewith Davison on February 27 made a criminal complaint against the Carters for the unlawful branding of a cow. The second amendment petition1 recited, inter alia, that the Carters were arrested; waived preliminary examination; were bound over to the District Court of Campbell County, where on an information they were later tried and by a directed verdict were found not guilty; and all of the proceedings relating to the warrant and arrest were publicized and caused the Carters serious damage. Defendants filed a motion for summary judgment under Rule 56, Wyoming Rules of Civil Procedure, together with an affidavit of the Campbell County sheriff which alleged various facts concerning his part in the matter. The trial court granted the motion and entered judgment for defendants (approved as to form by plaintiffs), reciting among other things that 'by stipulation of the parties hereto the facts submitted in the Second Amended Complaint [Petition], coupled with the affidavit filed by the defendants with the motion for summary judgment, constitute all of the facts in this matter, and that there is no genuine issue as to any material fact, and that the facts as shown by these pleadings are undisputed.'

Prior to the hearing in this court the parties stipulated that Fred Davison died on May 31, 1959, that the action herein abates as to Davison, and that defense counsel should request this court to terminate the action. In accordance with said stipulation and defendants' motion relating thereto, the cause against Davison is hereby dismissed.

Plaintiffs say, and we agree, that the sole point of issue in the appeal is whether want of probable cause is shown in the petitions. Of course, the petition and the amended petition are not subject to attack in the appeal. Elliott, Appellate Procedure (1892), pp. 510, 511, ² states the rule succinctly:

'It requires no discussion to prove that if a party amends his pleadings in the trial court he can not successfully allege error on the rulings made upon the pleadings supplanted by the amendment. If a party desires to appeal from rulings declaring his pleadings bad he must stand upon his original pleading. If he amends his pleading it goes out of the record.'

Accordingly, the issue here is the effect of the second amended petition, hereafter called the petition, in stating the absence of probable cause, notwithstanding the assertion therein that there had been a waiver of preliminary hearing in the criminal proceedings.

Argument is advanced as to the effect on probable cause of a justice binding over a defendant after hearing. Although the law on this subject is of interest only by way of analogy, it merits some discussion. The controlling Wyoming case on this point is Penton v. Canning, 57 Wyo. 390, 118 P.2d 1002, 138 A.L.R. 300, which turns upon and failure of plaintiff to allege facts avoiding the pleaded defense of a binding over by the magistrate and holds basically that an accused's being bound over is prima facie, but not conclusive, evidence of probable cause to be overcome only by evidence that the action of the magistrate was obtained by false testimony or other improper means. This rule has been adopted in certain Federal holdings and in Florida, New York, and Rhode Island. Annotation, 68 A.L.R.2d 1168, 1190. At page 1173 of this annotation it is stated:

'It is a general rule, at least by the numerical weight of authority, that while an order committing, binding over, or holding an accused person for further proceedings is prima facie evidence of probable cause for the institution of the prosecution in which it is made, its effect as such may be overcome by the accused as plaintiff in an action for malicious prosecution against the complaining witness by producing evidence which, if believed, would show want of probable cause.'

Plaintiffs' principal contention is that the waiver of the preliminary examination by the Carters was not even prima facie evidence of an admission of probable cause for the criminal prosecution. This position does not seem to be in accord with the general rule; but as the following texts, encyclopedias, and cases indicate, there is not entire unanimity of viewpoint on the subject.

'* * * where the accused is committed or held to bail by a magistrate * * * it is evidence that there was probable cause for the prosecution. It is very often said that this establishes a 'prima facie' case; but since the plaintiff has the burden of proving lack of probable cause in any case, and is free to do so, this apparently means nothing more than that the commitment is important evidence on the issue. The same effect is given to a commitment where the accused has waived the preliminary examination. * * *' Prosser, Torts, 2d ed., p. 657.

'* * * A waiver of examination by the accused in an admission of the existence of probable cause, but is only prima facie evidence thereof. * * *' 1 Cooley, Torts, 4th ed., pp. 398, 399.

'While the waiver of a preliminary examination and the giving of bail for appearance do not constitute such an admission of guilt as will preclude the party from sustaining an action for malicious prosecution, they have been held to raise a prima facie presumption of probable cause for the prosecution or to constitute prima facie evidence thereof, although it is not conclusive; the presumption may be overcome by competent evidence on the trial. However, it has also been held that such waiver constitutes in no degree, not even prima facie, a showing or admission of probable cause.' 54 C.J.S. Malicious Prosecution § 34c (1948).

'Anything appearing of record in the proceedings against the plaintiff which may be construed as an admission either of his guilt or of there being probable cause for his prosecution is admissible against him. Accordingly, it may be shown that the plaintiff voluntarily waived an examination and entered into a recognizance for his appearance to answer the charge. * * *' 34 Am.Jur. (1941) Malicious Prosecution § 152.

In Leggett v. Montgomery Ward & Co., 1949, 10 Cir., 178 F.2d 436, 438, a case arising in this State, Judge Bratton stated unequivocally:

'* * * the waiving of preliminary examination was tantamount in law to a finding of the magistrate that there was sufficient cause to believe plaintiff guilty. It was the equivalent to a hearing, a finding of probable cause, and a resulting holding of plaintiff to the district court. * * *'

Perhaps the case which has caused most discussion is Vansickle v. Brown, 1878, 68 Mo. 627, where it is said at p. 637:

'* * * If the finding of the magistrate on the facts proved before him makes a prima facie case, surely waiving an examination and voluntarily entering into recognizance amounts to a confession by the accused that there is probable cause. * * *'

Such holding so far as we are aware has not been adopted elsewhere and has since been tempered in Missouri. In Campbell v. Myers, 1926, 221 Mo.App. 858, 287 S.W. 842, 845, the court said:

'The waiving of a preliminary hearing, while constituting prima facie evidence, may not be accepted as a confession of guilt, and, being only a presumption, may be overcome by evidence. * * *'

A leading case in Oregon, Hess v. Oregon German Baking Co., 1897, 31 Or. 503, 49 P. 803, held that the effect of a waiver of preliminary examination can be nothing more than an admission that there is sufficient cause for holding the accused to answer and that this is the only result which could flow from an examination. Such case is currently recognized in that State as shown by Drake v. Anderson, 1959, 215 Or. 291, 334 P.2d 477.

Ohio applies the rule which the court in Burke v. Kearney, 1935, 51 Ohio App. 287, 200 N.E. 649, 653, quotes from 25 Ohio Jurisprudence 944:

"Waiving of examination before the justice of the peace is also prima facie evidence of probable cause."

West Virginia recognizes the rule that the waiver by the accused of a preliminary examination is prima facie evidence of probable cause. Brady v. Stiltner, 1895, 40 W.Va. 289, 21 S.E. 729.

North Carolina follows the rule that the waiver of preliminary examination by a person arrested on a criminal charge constitutes prima facie evidence of probable cause. Jones v. Wilmington & W. R. Co., 1902, 131 N.C. 133, 42 S.E. 559; Bryant v. Murray, 1953, 239 N.C. 18, 79 S.E.2d 243.

An Illinois court said that the waiver of a preliminary examination 'should have no more influence than would the finding of the magistrate, upon a hearing of the evidence, that there was probable cause, and binding the party over for his appearance or committing him.' Schoonover v. Myers, 1862, 28 Ill. 308, 312, 313.

In New York the courts have passed upon the question in various aspects a number of times, and it is of interest to note the tenor of the holdings, bearing in mind the court or department of the appellate division from which the decision emanated.

One of the earlier cases, Stern v. Rindeman, 1st Dept. 1936, 247 App.Div. 345, 287 N.Y.S. 412, 413, in determining whether or not a malicious prosecution complaint was sufficient, stated:

'* * * The holding [of the plaintiff] by the magistrate and waiver of examination was prima...