Kennedy v. Burbidge

• Decision Date: 18 June 1919
• Docket Number: 3361
• Citation: 54 Utah 497,183 P. 325
• Court: Utah Supreme Court
• Parties: KENNEDY v. BURBIDGE

183 P. 325

54 Utah 497

KENNEDY v. BURBIDGE

No. 3361

Supreme Court of Utah

June 18, 1919

On Application for Rehearing August 17, 1919.

Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.

Action by Pat Kennedy against J. E. Burbidge. Judgment for defendant, and plaintiff appeals.

REVERSED and REMANDED.

Evans &amp Sullivan of Salt Lake City, for appellant.

Wm. H Folland, City Atty., and H. H. Smith and W. W. Little, Asst. City Attys., all of Salt Lake City, for respondent.

THURMAN, J. CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

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 him in his person, his good name and business. The plaintiff then, in substance, alleges that a trial was had on said complaint in the said city court, and that plaintiff was convicted of said alleged offense, but that the evidence upon which he was convicted was incompetent, immaterial, and wholly failed to prove any intention on the plaintiff's part to violate any law of the state or ordinance of said city. Finally, it is alleged by plaintiff that he appealed from said judgment of conviction to the district court of Salt Lake county, in which said court, on motion of the city attorney, the jury was instructed to return a verdict of not guilty; that said verdict was rendered and judgment of acquittal entered thereon; that by reason of the wrongful acts of defendant in swearing falsely to the complaint, charging plaintiff with an offense and otherwise causing plaintiff to be prosecuted thereon, plaintiff was damaged in the sum of $ 1,400.

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 an 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 in favor of the plaintiff. In this case the defendant does not contend that the complaint is defective in failing to allege that the proceeding complained of by plaintiff was malicious. Neither is it contended that the complaint fails to show that the proceeding finally terminated in favor of the plaintiff. The question is narrowed down to the proposition as to whether or not the complaint on its face discloses a want of probable cause for the proceeding complained of. The complaint alleges the fact that plaintiff in the city court was convicted of the offense instituted against him by the defendant, and, under the authorities hereinafter cited, such conviction is at least prima facie evidence of probable cause for the prosecution, notwithstanding the conviction is afterwards reversed. Some of the authorities go so far as to hold that such evidence is absolutely conclusive, but in our opinion the weight of judicial opinion as well as that of jurists and text-writers, is to the effect that evidence of a conviction is only prima facie, and may be rebutted by competent evidence which impeaches the validity of the judgment. As will be seen from the decisions to which we shall refer, the most common expression is that a judgment of conviction against the plaintiff in a case of this kind can be impeached and overthrown only by showing that the judgment was procured by perjury, fraud, or other undue means. The majority of the authorities brought to our attention by both of the parties to this litigation demonstrate that such is the case wherever this particular question is involved.

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 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 S.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. 551; Thomas v. Muehlmann, 92 Ill.App. 571; Holliday v. Holliday, 123 Cal. 26, 55 P. 703; Carpenter v. Sibley, 153 Cal. 215, 94 P. 879, 15 L. R. A. (N. S.) 1143, and note, 126 Am. St. Rep. 77, 15 Ann. Cas. 484; Fones v. Murdock, 80 Ore. 340, 157 P. 148; Annotated note L. R. A. 1916F, 196-203; Adams v. Bicknell, 126 Ind. 210, 25 N.E. 804, 22 Am. St. Rep. 576; Blucher v. Zonker, 19 Ind.App. 615, 49 N.E. 911; Haddad v. Chesapeake & O. R. Co., 77 W.Va. 710, 88 S.E. 1038, L. R. A. 1916F, 192; Dennehey v. Woodsum, 100 Mass. 195; King v. Estabrooks, 77 Vt. 371, 60 A. 84; Schofield v. Thackaberry, 115 Ill.App. 118; Henderson v. McGruder, 49 Ind.App. 682, 98 N.E. 137; Topolewski v. Plankinton Pkg. Co., 143 Wis. 52, 126 N.W. 554.

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. 432.

In addition to these, the decisions that could be cited to the same effect are almost numberless, as will appear from the cases 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 prima 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 of 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 a reversal, when offered as evidence in a case for malicious prosecution, is at least prima facie evidence of probable cause for the prosecution. It follows therefore that where the complaint itself in an action for malicious prosecution shows that plaintiff was...