Overson v. Lynch, 6398
| Decision Date | 12 November 1957 |
| Docket Number | No. 6398,6398 |
| Citation | 83 Ariz. 158,317 P.2d 948 |
| Parties | Ross W. OVERSON, Appellant, v. Joe LYNCH, E. T. Wilbur and Josephine Wilbur, husband and wife, et al., Appellees. |
| Court | Arizona Supreme Court |
Wallace O. Tanner, Phoenix, for appellant.
Earl Platt, St. Johns, for appellees E. T. Wilbur and Josephine Wilbur.
No appearance for appellee Lynch.
This is an appeal by Ross W. Overson, plaintiff-appellant, from an order granting motions of defendants-appellees, Joe Lynch, E. T. Wilbur and Josephine Wilbur, his wife, to dismiss the amended complaint on the ground that it fails to state any claim upon which the relief prayed for, or any relief at all, may be granted against the defendants.
We will set forth verbatim the pertinent part of the first cause of action:
'* * * the defendant E. T. Wilbur, while then and there acting on behalf of himself and the community, consisting of himself and his wife Josephine Wilbur, and as agent of his wife, Josephine Wilbur, and with the knowledge and consent of his said wife, Josephine Wilbur, while contriving and maliciously, and without probable cause, intending to injure plaintiff, falsely, maliciously and without probable cause, and while being aided and abetted, counselled and advised by the said defendant Joe Lynch, and being under oath, made the following sworn statement:
Thereafter, it is alleged in the pleading, a criminal warrant of arrest was wrongfully and unlawfully issued against the plaintiff due to the wrongful, unlawful and malicious acts and statements of defendants, Joe Lynch and E. T. Wilbur, which said acts were without probable cause. There is further contained therein allegations of the arrest and then the following appears:
'* * * on which last named hearing date it appeared that the defendant E. T. Wilbur, had failed to appear for any hearing on said case and that the defendant E. T. Wilbur had no evidence or testimony to present to said court to prove plaintiff, Ross W. Overson, guilty of said charge, and there being no prosecution thereof, the said Ross W. Overson was discharged by said Court and all further prosecution against said plaintiff was thereafter abandoned by the defendant herein.'
The pleading is concluded with an allegation for damages.
The second cause of action is substantially the same as the first except it is alleged that the defendant, Joe Lynch, while contriving and maliciously intending to injure plaintiff, falsely, maliciously and without probable cause and while being aided and abetted, counselled and advised by the defendant, E. T. Wilbur, wrongfully and unlawfully procured and caused a criminal warrant of arrest to be issued against plaintiff by falsely, maliciously and without probable cause making a statement, under oath, before the justice of the peace, that plaintiff was the person guilty of burglary; which statements were false and known to be false by defendant when they were made, and together with the criminal complaint previously signed by defendant E. T. Wilbur resulted in a continuation of the criminal proceeding. The pleading then alleges the issuance of the warrant of arrest, the arrest, the abandonment of prosecution, and a claim for damages.
Plaintiff's assignments of error are to the issue of whether the complaint states causes of action for malicious prosecution. A complaint for malicious prosecution must allege (1) that there was a proseuction, (2) that it terminated in favor of plaintiff, (3) that defendants were prosecutors, (4) that they were actuated by malice, (5) that there was want of probable cause, and (6) the amount of damages sustained. Griswold v. Horne, 19 Ariz. 56, 165 P. 318, L.R.A.1918A, 862; Fowler v. Ruebelmann, 65 Idaho 231, 142 P.2d 594; 34 Am.Jur., Malicious Prosecution, section 111, p. 769.
Defendant F. T. Wilbur contends the complaint is defective in the following respects: (1) that it appears from the face of the complaint that probable cause did exist, (2) that it fails to allege the prosecution terminated favorably to the plaintiff, and (3) that plaintiff is judicially estopped from taking a position in the amended conplaint contrary to the allegations contained in the verified complaint.
We will first consider the contention of defendants Wilbur that it appears from the face of the amended complaint that probable cause did exist. In McClinton v. Rice, 76 Ariz. 358, 265 P.2d 425, 431, we held that probable cause is a complete and absolute defense to a suit for malicious prosecution, and we also defined probable cause:
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Glaze v. Larsen
...element of a claim for malicious prosecution is that the prosecution terminate in favor of the plaintiff. See Overson v. Lynch, 83 Ariz. 158, 161, 317 P.2d 948, 949 (1957). Therefore, for purposes of the one-year statute of limitations governing malicious prosecution claims, A.R.S. § 12-541......
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Cullison v. City of Peoria
...without probable cause and 6) causing damages. Slade v. City of Phoenix, 112 Ariz. 298, 300, 541 P.2d 550, 552 (1975); Overson v. Lynch, 83 Ariz. 158, 317 P.2d 948 (1957). A separate tort, but a closely related one to malicious prosecution, is false imprisonment. False imprisonment can be d......
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Moran v. Klatzke
...claim 1 is that the prior proceedings must have terminated in favor of the person against whom they were brought. Overson v. Lynch, 83 Ariz. 158, 317 P.2d 948 (1957). A malicious prosecution action does not accrue until the prior proceedings have terminated in the defendant's favor. Nataros......
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...probable cause.' When an officer has probable cause to instigate proceedings that is a complete defense to the action. Overson v. Lynch, 83 Ariz. 158, 317 P.2d 948 (1957); McClinton v. Rice, 76 Ariz. 358, 265 P.2d 425 (1953). Moreover, the depositions indicate that Officer Harder did some a......