Stebbins v. Wilson

• Decision Date: 18 November 1948
• Docket Number: 8830.
• Citation: 199 P.2d 453,122 Mont. 186
• Parties: STEBBINS v. WILSON et al.
• Court: Montana Supreme Court

199 P.2d 453

122 Mont. 186

STEBBINS v. WILSON et al.

No. 8830.

Supreme Court of Montana

November 18, 1948

Appeal from District Court, Eleventh District, Flathead County; Dean King, Judge.

Action by George R. Stebbins against Ross J. Wilson and others for malicious prosecution. From a judgment of dismissal plaintiff appeals.

Affirmed.

Mark H. Derr, of Polson, for appellant.

Walchli Korn & Warden, of Kalispell, for respondents.

ANGSTMAN Justice.

This action is one for damages for alleged malicious prosecution. The court sustained an objection to the introduction of any testimony upon the ground that the complaint failed to state facts sufficient to constitute a cause of action and dismissed the action. The appeal is from the judgment.

The only question involved is the sufficiency of the complaint to show a want of probable cause for the criminal prosecution. It alleges in substance that defendants caused plaintiff's arrest, and prosecution before a justice of the peace for the offense of shooting game birds out of season; that plaintiff was convicted of the offense before the justice of the peace; that on his appeal to the district court the county attorney failed and refused to prosecute the charge and without the consent of these defendants the charge was dismissed on motion of the county attorney.

The propriety of the court's ruling that the complaint was insufficient depends upon the effect of the conviction of plaintiff before the justice of the peace on the issue of probable cause. Defendants contend that his conviction before the justice of the peace establishes conclusively the existence of probable cause for the prosecution absent any allegation of fraud perjury or other corrupt means of obtaining the conviction.

The general rule is an contended for by defendants. It is stated in the Restatement of the Law on Torts, section 667, page 421, as follows:

'The conviction of the accused by a magistrate or trial court although reversed by an appellate tribunal, conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury or other corrupt means.'

The rule with supporting authorities is stated in 34 Am.Jur., section 116, page 772, as follows:

'Where the complaint itself shows that the plaintiff was convicted, or that judgment was rendered against him, in the proceeding complained of, it must go farther and allege some fact or facts the legal effect of which is to impeach the validity of the judgment and render it worthless as evidence of probable cause. The facts so alleged should be to the effect that the judgment was procured by fraud, perjury, or other undue or unfair means employed by the defendant.'

See also, 54 C.J.S., Malicious Prosecution, § 37, page 999, and Crescent City Live-Stock Landing & Slaughter-House Co. v. Butchers' Union Slaughter House Co., 120 U.S. 141, 7 S.Ct. 472, 30 L.Ed. 614.

Counsel for plaintiff contends however, that the complaint is sufficient to bring the case within the well recognized exception contained in the above statements of the law.

Plaintiff alleges in the complaint, 'that the evidence upon which he was convicted was incompetent, immaterial and wholly failed to prove any intention on the part of the plaintiff to violate any law of the state.' An identical allegation was made in the case of Kennedy v. Burbidge, 54 Utah 497, 183 P. 325, 327, 5 A.L.R. 1682. In that case the court held the complaint was sufficient but did so because it contained the following allegation:

'Plaintiff further alleges that all the material allegations of fact set forth in said affidavit of said defendant as hereinbefore set forth were false and untrue, and were made by defendant maliciously and with no sufficient provocation or probable cause therefor, and were made by defendant without any personal knowledge of the facts therein sworn to, and without sufficient investigation to obtain knowledge concerning the truth of the facts set out, contained, and sworn to in said complaint, and were made by said defendant for the sole and only purpose of embarrassing, humiliating, and distressing this plaintiff and injuring him in his person and good name and in his property, and...