Steadman v. Topham

• Decision Date: 28 April 1959
• Docket Number: No. 2858,2858
• Citation: 80 Wyo. 63,338 P.2d 820
• Parties: Oliver W. STEADMAN, Appellant (Defendant below), v. Art T. TOPHAM, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 820

338 P.2d 820

80 Wyo. 63

Oliver W. STEADMAN, Appellant (Defendant below), v. Art T. TOPHAM, Appellee (Plaintiff below).

No. 2858.

Supreme Court of Wyoming.

April 28, 1959.

Meyer Rankin, Cody, and Edward E. Murane, Casper, for appellant.

Goppert & Fitzstephens, J. D. Fitzstephens, Cody, for appellee.

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

Mr. Chief Justice BLUME delivered the opinion of the court.

This is an action for malicious prosecution brought by Art T. Topham, hereafter referred to as plaintiff or by his name, against the Shoshone National Bank of Cody and Oliver W. Steadman, an attorney at law of Cody, Wyoming. The Shoshone Bank will hereafter be referred to as the bank and Mr. Steadman will be referred to either by name or as the defendant. The petition alleged that the defendants maliciously and without probable cause filed a criminal complaint in the justice court at Cody signed and sworn to on December 19, 1955, by Oliver W. Steadman, reading as follows:

'I, Oliver W. Steadman, do solemnly swear that on or about the 9th [8th] day of January, 1955, in the County of Park and State of Wyoming, the said Art T. Topham did unlawfully know that a statement in writing to the Shoshone National Bank, Cody, Wyoming, a Corporation had been made respecting the financial condition of the A & N Surplus, Inc., a Corporation, the said Art T. Topham being then and there an officer and having interest in said Corporation, and did procure a loan upon the face thereof, from said Shoshone National Bank, Cody, Wyoming, a Corporation, for the benefit of said A & N Surplus, Inc., a Corporation.

'Contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Wyoming.'

The defendants answered, denying that they instituted criminal proceedings against the plaintiff maliciously or without probable cause. Steadman admitted that he executed and filed the foregoing criminal complaint and alleged that he, believing that a criminal offense had been committed by Art T. Topham, reported the matter of the alleged criminal offense on the part of Topham to the County and Prosecuting Attorney of Park County, Wyoming, who thereupon caused to be prepared and filed the criminal complaint mentioned by Topham in his petition. An arrest of Topham was made pursuant to the criminal complaint on December 24. He furnished bail in the sum of $200 and was never imprisoned.

The case was tried to a jury. At the end of the evidence produced on the part of Topham and again after all the evidence was in, the defendants in the case made motions to have judgment entered in their favor which were overruled. But before the case was submitted to the jury the case against the Shoshone National Bank was dismissed and the case was submitted to the jury only as to Steadman. The jury returned a verdict against Steadman for the sum of $10,000 damages in favor of Topham. Thereafter Steadman filed a motion for a judgment notwithstanding the verdict or, as an alternative, for new trial. The court directed that Topham should file a remittitur of all damages in excess of $4,000 or that a new trial would be granted. The remittitur was filed and thereafter a judgment was entered against the defendant for the sum of $4,000 in favor of Topham and against Steadman. Thereafter supplemental motions for a new trial were filed by Steadman in the case. Attached, among other things, were affidavits by N. G. Catellier and E. M. Casey to show that, as a matter of fact, Topham knew of the financial statement mentioned in the complaint filed herein and to show that plaintiff Topham testified falsely in the case. Catellier stated in his affidavit that Topham was familiar with the financial statement and had seen it and helped to prepare it, and that Topham was specifically asked in the bank at the time the loan for $800 was obtained as to whether or not the financial statement was correct and that Topham answered in the affirmative. The affidavit of E. M. Casey stated that Topham and Catellier attempted to get him to help them get a loan in January 1955 and that at that time:

'Topham and Catellier had with them a financial statement showing the financial condition of the A & N Surplus, Inc., and this financial statement was discussed briefly with Mr. Topham and Mr. Catellier;

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'I do know of my own personal knowledge that Art T. Topham was familiar with the financial statement of the company in January, 1956 [1955] because he and Mr. Catellier were present in my office in Powell and they had the financial statement with them and if Mr. Topham wanted to he had full opportunity to study the financial statement at that time.'

But these supplemental motions were overruled, and the case is now before us on appeal taken by Oliver W. Steadman.

The facts leading up to the filing of the criminal complaint above mentioned are briefly as follows: Topham and Catellier were the holders or main holders of the stock of the A & N Surplus, Inc., a corporation. They wanted to procure a loan from E. M. Casey above mentioned. Not having procured that loan, they wanted to procure one from the Shoshone National Bank. A financial statement was executed on January 8, 1955, sworn to on January 9, 1955, showing on hand merchandise valued at $18,723.42 and but little indebtedness. It did not include any indebtedness of $5,000 mentioned hereafter. The financial statement was signed by Catellier but not by Topham. On January 22, 1955, the corporation passed a resolution to permit the borrowing of $3,500 from the foregoing bank. The signatures attached were those of Topham and Catellier. The financial statement was given to the bank, the exact date of which does not appear in the record. Both Topham and Catellier went to the bank on January 27, 1955, after the financial statement had been given to the bank and procured a loan of $800, the note being signed by both on behalf of the corporation. The note fell due in three months, and the president of the bank then attempted to procure a renewal on the note, but Catellier by that time had apparently severed his connection with the A & N Surplus, Inc., and the renewal note was only signed by Topham. The old note was retained and together with the financial statement was placed in the hands of the defendant Steadman for collection, and a judgment was obtained thereon on November 30, 1955. On December 16, 1955, while Steadman was trying to discover as to whether or not Topham had any property on which to make a levy, he discovered that Topham and Catellier had executed a mortgage, mortgaging all of the property of the A & N Surplus, Inc., the mortgage being dated December 20, 1954, and acknowledged January 20, 1955, and filed of record in Park County on January 21, 1955. Steadman at that time, namely, on December 16, 1955, called at the office of the County and Prosecuting Attorney of Park County, Wyoming, and laid the matter before him, including the mortgage above mentioned, the financial statement, the note given the bank, and the judgment secured on the note. The county and prosecuting attorney did not at that time act upon the information given him by Steadman but took the matter under advisement for three days, in the meantime discussing the matter with his deputy, and on December 19, 1955, he called Steadman and advised him that in his judgment a crime had been committed and that he had prepared a criminal complaint ready for Steadman's signature. The complaint was then signed by Steadman as above mentioned. An amended complaint was filed at the request of the county and prosecuting attorney on January 9, 1956, but no arrest was made under that complaint, so that it is immaterial in the case and need not be mentioned again. Baird v. Aluminum Seal Company, Inc., 3 Cir., 250 F.2d 595; Perry v. Arsham, 101 Ohio App. 285, 136 N.E.2d 141.

We might state at this place that in the trial of the case Topham proved actual damages in approximately the sum of $400 by reason of making two or three trips to Cody in connection with the criminal complaint and paying the sum of $100 to his attorney, and he also testified that he was humiliated and shunned by some of his friends.

The case under the criminal complaint before the justice of the peace was continued several times, and on January 27, 1956, the case was dismissed by the county and prosecuting attorney.

1. The plaintiff Topham was required to prove in this case not only that the case was dismissed against him but also that Steadman acted with malice and without probable cause in filing the criminal complaint heretofore mentioned. Henning v. Miller, 44 Wyo. 114, 8 P.2d 825, 14 P.2d 437. We shall hereafter discuss the case mainly in connection with the question as to whether or not there was probable cause for Steadman to file his complaint against plaintiff Topham. The trial court in that connection in Instruction 5 told the jury in part as follows:

'You are instructed that the Court has found in this case that there was want of probable cause, as a matter of law; and you may infer from this that there was malice on the part of the defendant Steadman.'

Counsel for Steadman contend that this instruction was erroneous.

2. We held in the case of McIntosh v. Wales, 21 Wyo. 397, 134 P. 274, Ann.Cas.1916C, 273, that a dismissal of the proceedings at the request of the prosecuting attorney constitutes no evidence of want of probable cause since he acts in his official capacity and not as a representative of the defendant. It is argued by counsel for the plaintiff Topham that this case should be distinguished from the foregoing case by reason of the fact that the dismissal herein was entered after the justice of the peace found that no probable cause existed for arresting Catellier, against whom also an information had been filed. We do not think this fact makes any difference. We do not know what evidence was...