Russell v. Chamberlain

• Decision Date: 18 April 1906
• Citation: 85 P. 926,12 Idaho 299
• Parties: WILLIAM J. RUSSELL, Appellant, v. A. V. CHAMBERLAIN et al., Respondents
• Court: Idaho Supreme Court

85 P. 926

12 Idaho 299

WILLIAM J. RUSSELL, Appellant, v. A. V. CHAMBERLAIN et al., Respondents

Supreme Court of Idaho

April 18, 1906

MALICIOUS PROSECUTION-DEFENDANTS JOINED-WANT OF PROBABLE CAUSE AND MALICE-ALLEGATIONS OF COMPLAINT-DEMURRER.

1. It is not necessary in an action for malicious prosecution to allege that all of the defendants combined in instituting the proceedings complained of. If, after the proceedings were commenced, they, without probable cause and with malice participate voluntarily in the prosecution, they may be joined in an action as defendants with the person or persons who instituted the action.

2. Want of probable cause and malice must coexist.

3. Actions for malicious prosecutions are not favored in law and have been hedged about by limitations more stringent than in many other acts causing damage to another.

4. Held, that the complaint states a cause of action and that the court erred in sustaining the demurrers thereto.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District for Kootenai County. Hon. Ralph T. Morgan, Judge.

Action for malicious prosecution. Demurrer to complaint sustained and judgment of dismissal entered. Judgment reversed.

Judgment and order sustaining the demurrers set aside and case remanded, with instructions. Costs of this appeal awarded to the appellant.

R. E McFarland, for Appellant.

It is not necessary to prove that the defendants were the originators of the proceedings complained of. If they participated voluntarily in the malicious prosecution, and it was carried out with their countenance and approbation, they will be liable. (Newell on Malicious Prosecution, 368; 1 Kinkaid on Torts, par. 55; Stansbury v. Fogle, 37 Md. 369; Mauldin v. Ball, 104 Tenn. 597, 58 S.W 248; Dreux v. Domec, 18 Cal. 83; Finley v. St. Louis Ref. & W. G. Co., 99 Mo. 559, 13 S.W. 87; Porter v. Martyn (Tex. Civ. App.), 32 S.W. 731; Brown v. Chadsey, 39 Barb. 253; Christian v. Hanna, 58 Mo.App. 37.)

McClear & Burgan and Robert H. Elder, for Respondents.

In this case there is no charge against any of the respondents having commenced, advised or instigated the prosecution, and the complaint does not state facts sufficient to constitute a cause of action against any of them.

The essential element of the charge of malicious prosecution, viz., probable cause, is entirely wanting in the case of either one of the respondents who has been served with process.

The test of probable cause is to be applied as to the time when the action complained of was commenced, and facts that came to defendant's knowledge afterward are no protection. (Cooley on Torts, 183.) To support an action for malicious criminal prosecution the plaintiff must prove, in the first place, the fact of prosecution and that the defendant was the prosecutor, or that defendants instigated its commencement and that it terminated in plaintiff's acquittal. ( Wheeler v. Nesbitt, 24 How. (65 U.S.) 544, 16 L.Ed. 765.)

It must appear that the prosecution was instigated by the defendant, and the onus is upon the plaintiff to show that the defendant was the prosecutor, and that the prosecution was without reasonable or probable cause. (Farnum v. Feeley, 56 N.Y. 454; Harkrader v. Moore, 44 Cal. 144.)

SULLIVAN, J. Stockslager, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This is an action to recover damages for an alleged malicious prosecution. Demurrers to the amended complaint were sustained and judgment of dismissal was entered and the plaintiff appeals therefrom. All of the defendants, except Frank M. Crandall, were served with summons and appeared. The defendant Crandall was not served and did not appear. It is alleged in the complaint that on the eleventh day of April 1904, in Kootenai county, the said Crandall made, signed, swore to and filed with a justice of the peace, in said county, a certain complaint or information in writing charging and accusing the plaintiff with having unlawfully, willfully, maliciously and feloniously set fire to and caused to be burned, in the night-time, a certain mercantile warehouse, situated in Coeur d'Alene City, with the intent then and there willfully, maliciously and feloniously to destroy said building, and caused said justice of the peace to issue a warrant for the apprehension and arrest of the plaintiff upon said charge, and that the plaintiff was arrested by virtue of said warrant; that the acts of said Crandall therein were malicious and without reasonable or probable cause. Then follows an allegation that on or about the eleventh day of April, 1904, the defendants, contriving and maliciously intending to injure plaintiff in his good name and reputation, caused him to be imprisoned without any reasonable or probable cause therefor, and wickedly conspired, combined and agreed together among themselves to prosecute plaintiff upon said charge, and procured the plaintiff to be examined before said justice of the peace upon said charge, and by said justice of the peace held over to answer said charge at the next term of the district court in and for said county, and caused him to be imprisoned, informed against and prosecuted in said district court upon said charge; that in pursuance of said conspiracy, the defendants, still contriving and maliciously intending to injure plaintiff in his good name and reputation, and to cause him to be imprisoned without any reasonable cause, therefor, "employed and procured certain detectives to secure the attendance of certain persons to attend before said justice of the peace at said examination and testify under oath against plaintiff, and that said detectives did accordingly procure certain persons to attend and under oath give false and perjured testimony before said examining magistrate against plaintiff in said prosecution." It is also alleged that the defendants procured and employed...