Penton v. Canning

• Decision Date: 18 November 1941
• Docket Number: 2197
• Citation: 118 P.2d 1002,57 Wyo. 390
• Parties: PENTON v. CANNING
• Court: Wyoming Supreme Court

118 P.2d 1002

57 Wyo. 390

PENTON v. CANNING

No. 2197

Supreme Court of Wyoming

November 18, 1941

APPEAL from the District Court, Fremont County; C. D. MURANE, Judge.

Action for malicious prosecution by J. L. Penton against Gertrude C Boyd Canning. Judgment for plaintiff and defendant appeals.

Reversed.

For the appellant, there was a brief and oral argument by F. B Sheldon, Jr. of Riverton and H. S. Harnsberger of Lander.

In an action for malicious prosecution, facts constituting probable cause or the want of it must be alleged in the petition. Gusti v. DelPapa (R. I.) 33 A. 525; Closson v Staples (Vt.) 1 Am. Rep. 316; King v. Estabrooks (Vt.) 60 A. 84; Brown v. Cape Girardeau (Mo.) 59 Am. Rep. 28; Brown v. Connelly, 5 Blackf. 390; Driggs v. Burton, 44 Vt. 146; 18 R. C. L. 69, Sec. 50. An averment of want of probable cause is a mere conclusion of law, insufficient to rebut the presumption of probable cause. 38 C. J. 464; Saunders v. Baldwin (Va.) 71 S.E. 620; Kennedy v. Burbige (Utah) 183 P. 325; Boogher v. Hough (Mo.) 12 S.W. 524; Holiday v. Holiday (Calif.) 55 P. 703; Jones v. Jones (Cal.) 11 P. 817; Diemer v. Herber (Cal.) 17 P. 205; Jones v. Jenkins (Wash.) 27 P. 1022; Ross v. Hickson, 26 Am. St. R. 123; Griffis v. Sellers, 31 Am. Dec. 422. To maintain an action for malicious prosecution, it is necessary to establish that the prosecution: (1) was instituted; (2) was without probable cause; (3) was malicious; (4) had terminated in plaintiff's favor; (5) had damaged plaintiff. Boyer v. Bugher, 120 P. 171; McIntosh v. Wales, 134 P. 274. The question of probable cause must be determined as of the time the prosecution was instituted. Henning v. Miller, 8 P.2d 825. The Supreme Court will determine whether the facts show a want of probable cause in an action for malicious prosecution. Moore v. Northern Pr. Co. (Minn.) 33 N.W. 334; Lammers v. Masion (Minn.) 143 N.W. 359; Cox v. Lauristen (Minn.) 147 N.W. 1093; Archibald v. McLean, 21 Can. S. C. 58. Defendant's belief as to whether plaintiff was wrongfully claiming the property was material and should have been received by the trial court. McIntosh v. Wales, 134 P. 278. It was prejudicial to defendant to permit plaintiff to offer in rebuttal testimony as to defendant's character. McIntosh v. Wales, supra. There was no evidence to support a finding of malice. Probable cause does not depend upon the guilt of the accused in fact, but upon the honest and reasonable belief of the party commencing the prosecution. McIntosh v. Wales, supra. Defendant in the case reported the circumstances to the prosecuting attorney and followed his advice in supporting the prosecution. Defendant acted the part of a good citizen, for which she has been rewarded by a judgment against her and a known criminal is set free. Such a condition is an affront to the laity and a reflection upon the judiciary and those charged with the administration of law. The judgment below should be reversed.

For the respondents, there was a brief and oral argument by William B. Cobb of Casper.

As we understand appellant's brief, the following authorities appear to be relied upon for reversal or modification of the judgment below: That the petition upon which the case was tried does not allege a cause of action, for the reason that the allegation of want of probable cause is a conclusion only, and no other facts are alleged to overcome the prima facie showing made by the petition that plaintiff was bound over by a committing magistrate; that the defendant was not permitted to testify as to her belief concerning whether or not the plaintiff was wrongfully claiming the property; that the trial court erroneously permitted plaintiff to offer testimony in rebuttal as to defendant's character. We believe the amended petition was sufficient and that the trial court properly overruled the demurrer thereto. Stewart v. Sonneborn, 98 U.S. 187; Southwestern R. Co. v. Mitchell, 5 S.E. 490; Pope v. Pollock (Ohio) 21 N.E. 357; Magmer v. Renk, 27 N.W. 26; Eastin v. Bank (Calif.) 4 P. 1106; McPherson v. Runyon (Minn.) 43 N.W. 392; Savage v. Brown (Mass.) 16 Pick. 453; Newell on Malicious Prosecution 43; Closson v. Staples (Vt.) 1 A. R. 316. Counsel for appellant has cited a number of authorities, several of which are not at all in point, and others do not hold in accordance with the rule as stated by the appellant in her brief. Diemer v. Herber (Cal.) 17 P. 205 sustains the decision of the trial court rather than otherwise. We direct attention to the cause of Struby-Estabrook Merc. Co. v. Kyes, 48 P. 663, in which the point discussed by appellant's counsel is decided adversely to his contention. Malice may be inferred from a showing of want of probable cause, but will not be inferred from proof of malice alone. McIntosh v. Wales, 21 Wyo. 397. The judgment rendered in this case was not only justified by the evidence, but was less in amount than should have been awarded. After plaintiff's character had been attacked, it was proper to permit plaintiff to introduce character witnesses in rebuttal of that attack. McIntosh v. Wales, supra. We respectfully submit that there was an absolute and total lack of probable cause for the institution of the prosecution of this case and the judgment below should be affirmed.

RINER, Chief Justice. KIMBALL, J., concurs. BLUME, J., dissenting.

OPINION

RINER, Chief Justice.

This cause presents direct appeal proceedings from a judgment of the district court of Fremont County, in a case wherein J. L. Penton was plaintiff and Gertrude C. Boyd Canning was defendant. The plaintiff had judgment in the court below and the defendant asserting error brings the record here for review.

The cause was tried to the court, no jury being sought by either party. The action was one for alleged malicious prosecution of the plaintiff, Penton, and a brief outline of the history of the case so far as material at this time would seem to be as follows:

On November 21, 1935, the defendant, Gertrude C. Boyd Canning, whose name at that time was Gertrude C. Boyd, she having prior to the trial of the instant action remarried after the death of her husband, W. C. Boyd, signed a criminal complaint before George F. Dobler, a Justice of the Peace within and for the County of Fremont, State of Wyoming, charging the plaintiff, J. L. Penton, with the theft of live stock described as one heifer calf of the value of $ 20.00, stating in said criminal complaint that she was the owner of the animal.

Upon the filing of this complaint the Justice issued a warrant for the arrest of Penton, who was apprehended by the Sheriff of Fremont County aforesaid and placed in jail, where he remained for a few days, when he gave bond and was released. Upon being arraigned before the Justice, he entered a plea of "not guilty" to the charge, and preliminary examination was had. The State was represented by the County and Prosecuting Attorney of Fremont County and defendant Penton by his own counsel. Both parties introduced evidence before the Justice.

Thereafter the Justice made the following entry in his docket:

"At the conclusion of the testimony and after listening to the arguments of the respective attorneys, the court finds that a crime has been committed and that there is probable cause to believe the defendant guilty of the offense. It is therefore ordered, adjudged and decreed that the defendant, J. L. Penton, be and he is hereby required to be and appear to the District Court of Fremont County, Wyoming on the first day of the next term thereof to answer to the complaint charged."

Subsequently, an action in replevin for the possession of the heifer calf claimed by these parties, as above described, was brought by Mrs. Boyd Canning before another Justice of the Peace in Fremont County, and upon the trial of this action the judgment of the Justice was in favor of John L. Penton and against Mrs. Boyd Canning. From this judgment given in the Justice Court as aforesaid, an appeal was taken to the District Court, and a similar result followed. Thereafter the criminal action charging J. L. Penton with the theft of the calf, as above recited, was on April 13, 1937, on motion of the County and Prosecuting Attorney of Fremont County, dismissed on the ground, as stated in the order of dismissal, that the replevin suit had been terminated favorably to Penton. It also appears that Mr. Ansell, the Sheriff of Fremont County who had conducted investigations of the matter on behalf of and under the direction of the County Attorney aforesaid had theretofore died during "the last few days of October, 1936" and prior to the trial of the replevin action.

May 19, 1937, the plaintiff (John L. Penton) instituted this action for malicious prosecution, which was on May 9, 1938, dismissed for neglect to proceed with the prosecution of said action. Thereafter, on petition of the plaintiff filed October 11, 1938, by order of the District Court of Fremont County, apparently made October 29, 1938, but not filed or entered on the court's journal until November 14th of that year, the action was reinstated; an amended petition was filed, and after general demurrer thereto had been overruled and general denial for answer filed, proceeded to trial with the resultant judgment in plaintiff's favor for $ 1,000 and costs, being the judgment now in question.

The defendant and appellant, Mrs. Gertrude C. Boyd Canning, among other points raised to maintain reversible error as against the judgment entered in the case, urges that the amended petition fails to state a cause of action against her. Succinctly the point is made in that connection that where the pleading shows on its face that at the preliminary examination upon the criminal charge filed, the justice found that there was...