Carter v. Davison

359 P.2d 990, 1961 Wyo. LEXIS 80

• Court: Wyoming Supreme Court
• Decided: February 28, 1961
• Docket: 2912
• Status: Published

Opinions

Mr. Justice PARKER

delivered the opinion of the court.

Marvin and Clarence Carter brought an action for malicious prosecution against Fred Davison, Robert Hayden, and Harris Swartz, alleging that some time between January 19, 1957, and February 27, 1957, the defendants unlawfully, maliciously, and without probable cause conspired together to injure plaintiffs and that in accordance therewith Davison on February 27 made a criminal complaint against the Carters for the unlawful branding of a cow. The second amendment petition¹ recited, inter alia, that the Carters were arrested; waived preliminary examination; were bound over to the District Court of Campbell County, where on an information they were later tried and by a directed verdict were found not guilty; and all of the proceedings relating to the warrant and arrest were publicized and caused the Carters serious damage. Defendants filed a motion for summary judgment under Rule 56, Wyoming Rules of Civil Procedure, together with an affidavit of the Campbell County sheriff which alleged various facts concerning his part in the matter. The trial court granted the motion and entered judgment for defendants (approved as to form by plaintiffs), reciting among other things that “by stipulation of the parties hereto the facts submitted in the Second Amended Complaint [Petition], coupled with the affidavit filed by the defendants with the motion for summary judgment, constitute all of the facts in this matter, and that there is no genuine issue as to any material fact, and that the facts as shown by these pleadings are undisputed.”

Prior to the hearing in this court the parties stipulated that Fred Davison died on May 31, 1959, that the action herein abates as to Davison, and that defense counsel should request this court to terminate the action. In accordance with said stipulation and defendants’ motion relating thereto, the cause against Davison is hereby dismissed.

Plaintiffs say, and we agree, that the sole point of issue in the appeal is whether want of probable cause is shown in the petitions. Of course, the petition and the amended petition are not subject to attack in the appeal. Elliott, Appellate Procedure (1892), pp. 510, 511,² states the rule succinctly:

“It requires no discussion to prove that if a party amends his pleadings in the trial court he can not successfully allege error on the rulings made upon the pleadings supplanted by the amendment. If a party desires to appeal from rulings declaring his pleadings had he must stand upon his original pleading. If he amends his pleading it goes out of the record.”

Accordingly, the issue here is the effect of the second amended petition, hereafter called the petition, in stating the absence of probable cause, notwithstanding the assertion therein that there had been a waiver of preliminary hearing in the criminal proceedings.

Argument is advanced as to the effect on probable cause of a justice binding over a defendant after hearing. Although the law on this subject is of interest only by way of analogy, it merits some discussion. The controlling Wyoming case on this point is Penton v. Canning, 57 Wyo. 390, 118 P.2d 1002, 138 A.L.R. 300, which turns upon the failure of plaintiff to allege facts avoiding the pleaded defense of a binding over by the magistrate and holds basically that an accused’s being bound over is prima facie, but not conclusive, evidence of probable cause to be overcome only by evidence that the action of the magistrate was obtained by false testimony or other improper means, This rule has been adopted in certain Federal holdings and in Florida, New York, and Rhode Island. Annotation, 68 A.L.R.2d 1168, 1190. At page 1173 of this annotation it is stated:

“It is a general rule, at least by the numerical weight of authority, that while an order committing, binding over, or holding an accused person for further proceedings is prima facie evidence of probable cause for the institution of the prosecution in which it is made, its effect as such may be overcome by the accused as plaintiff in an action for malicious prosecution against the complaining witness by producing evidence which, if believed, would show want of probable cause.”

Plaintiffs’ principal contention is that the waiver of the preliminary examination by the Carters was not even prima facie evidence of an admission of probable cause for the criminal prosecution. This position does not seem to be in accord with the general rule; but as the following texts, encyclopedias, and cases indicate, there is not entire unanimity of viewpoint on the subject.

“ * * * where the accused is committed or held to bail by a magistrate * * * it is evidence that there was probable cause for the prosecution. It is very often said that this establishes a ‘prima facie’ case; but since the plaintiff has the burden of proving lack of probable cause in any case, and is free to do so, this apparently means nothing more than that the commitment is important evidence on the issue. The same effect is given to a commitment where the accused has waived the preliminary examination. * * * ” Prosser, Torts, 2d ed., p. 657.

“ * * * A waiver of examination by the accused is an admission of the existence of probable cause, but is only prima facie evidence thereof. * * * ” 1 Cooley, Torts, 4th ed., pp. 398, 399.

“While the waiver of a preliminary examination and the giving of bail for appearance do not constitute such an admission of guilt as will preclude the party from sustaining an action for malicious prosecution, they have been held to raise a prima facie presumption of probable cause for the prosecution or to constitute prima facie evidence thereof, although it is not conclusive; the presumption may be overcome by competent evidence on the trial. However, it has also been held that such waiver constitutes in no degree, not even prima facie, a showing or admission of probable cause.” 54 C.J.S. Malicious Prosecution § 34c (1948).

“Anything appearing of record in the proceedings against the plaintiff which may be construed as an admission either of his guilt or of there being probable cause for his prosecution is admissible against him. Accordingly, it may be shown that the plaintiff voluntarily waived an examination and entered into a recognizance for his appearance to answer the charge. * * ” 34 Am.Jur. (1941) Malicious Prosecution § 152.

In Leggett v. Montgomery Ward & Co., 1949, 10 Cir., 178 F.2d 436, 438, a case arising in this State, Judge Bratton stated unequivocally :

“ * * * the waiving of preliminary examination was tantamount in law to a finding of the magistrate that there was sufficient cause to believe plaintiff guilty. It was the equivalent to a hearing, a finding of probable cause, and a resulting holding of plaintiff to the district court. * * * ”

Perhaps the case which has caused most discussion is Vansickle v. Brown, 1878, 68 Mo. 627, where it is said at p. 637:

“ * * * If the finding of the magistrate on the facts proved before him makes a prima facie case, surely waiving an examination and voluntarily entering into recognizance amounts to a confession by the' accused that there is probable cause. * ⅜ * ”

Such holding so far as we are aware has not been adopted elsewhere and has since been tempered in Missouri. In Campbell v. Myers, 1926, 221 Mo.App. 858, 287 S.W. 842, 845, the court said:

“The waiving of a preliminary hearing, while constituting prima facie evidence, may not be accepted as a confession of guilt, and, being only a presumption, may be overcome by evidence. * * * ”

A leading case in Oregon, Hess v. Oregon German Baking Co., 1897, 31 Or. 503, 49 P. 803, held that the effect of a waiver of preliminary examination can be nothing more than an admission that there is sufficient cause for holding the accused to answer and that this is the only result which could flow from an examination. Such case is currently recognized in that State as shown by Drake v. Anderson, 1959, 215 Or. 291, 334 P.2d 477.

Ohio applies the rule which the court in Burke v. Kearney, 1935, 51 Ohio App. 287, 200 N.E. 649, 653, quotes from 25 Ohio Jurisprudence 944:

“ ‘Waiving of examination before the justice of the peace is also prima facie evidence of probable cause.’ ”

West Virginia recognizes the rule that the waiver by the accused of a preliminary examination is prima facie evidence of probable cause. Brady v. Stiltner, 1895, 40 W.Va. 289, 21 S.E. 729.

North Carolina follows the rule that the waiver of preliminary examination by a person arrested on a criminal charge constitutes prima facie evidence of probable cause. Jones v. Wilmington & W. R. Co., 1902, 131 N.C. 133, 42 S.E. 559; Bryant v. Murray, 1953, 239 N.C. 18, 79 S.E.2d 243.

An Illinois court said that the waiver of a preliminary examination “should have no more influence than would the finding of the magistrate, upon a hearing of the evidence, that there was probable cause, and binding the party over for his appear-anee, or committing him.” Schoonover v. Myers, 1862, 28 Ill. 308, 312, 313.

In New York the courts have passed upon the question in various aspects a number of times, and it is of interest to note the tenor of the holdings, bearing in mind the court or department of the appellate division from which the decision emanated.

One of the earlier cases, Stern v. Rindeman, 1st Dept. 1936, 247 App.Div. 345, 287 N.Y.S. 412, 413, in determining whether or not a malicious prosecution complaint was sufficient, stated:

“ * * * The holding [of the plaintiff] by the magistrate and waiver of examination was prima facie a finding of probable cause. * * * ”

In Hodge v. Skinner, 3d Dept. 1938, 254 App.Div. 42, 4 N.Y.S.2d 406, 409, 410, it was said:

“When a magistrate, after he has examined into a charge of crime pending before him * * * and after he has found that a crime has been committed, and ‘that there is sufficient cause to believe the defendant guilty thereof,’ this finding of the magistrate constitutes, prima facie, probable cause for the making of the charge. And it is no longer open to question in this state that such a finding is a defense, prima facie, to an action for malicious prosecution against the informant. * * * But there is no authority in this state holding that the exercise of the election given by section 190 of the Code of Criminal Procedure [to waive the examination and give bail] is a confession or an admission of culpability, or any proof whatever of probable cause for initiating the prosecution. * * * ”

In Vallon v. Ramage, Sup.Ct.1949, 196 Misc. 740, 93 N.Y.S.2d 56, 61, it was held that the waiver of examination before the magistrate “did not establish prima facie evidence of probable cause.”

In Armstrong v. Mishkin, 2d Dept. 1955, 286 App.Div. 864, 141 N.Y.S.2d 884, 885, it was held by the majority opinion, relying upon Hodge v. Skinner, supra, and Vallon v. Ramage, supra, that “the mere waiver of examination before a committing magistrate, who has not power to determine guilt or innocence of the charge made against a defendant, is not tantamount to an admission that a crime has been committed and that there is sufficient cause to believe he is guilty.” However, Judge Beldock presented a strong dissent, saying at 141 N.Y.S.2d 886 that “The waiver of examination was tantamount in law to a finding of the magistrate that there was sufficient cause to believe the defendant in that proceeding guilty. It was the equivalent of a hearing and constituted prima facie evidence of probable cause.”

In Jones v. Independent Fence Co., Sup.Ct.1958, 12 Misc.2d 413, 173 N.Y.S.2d 684, 687, it was held on authority of cases previously mentioned that where “the defendant waives examination before the magistrate, such waiver does not establish prima facie evidence of probable cause.”

Small wonder that Judge Kaufman in Kozlowski v. Ferrara, D.C.S.D.N.Y., 117 F.Supp. 650, 653, said:

“ * * * There is apparently a conflict in the lower courts in New York over the question of waiver as equivalent to a finding of probable cause which bars actions for malicious prosecution and false arrest [citing Stern v. Rindeman, supra; Hodge v. Skinner, supra; and Vallon v. Ramage, supra]. ⅜ * * }>

It is true, as plaintiffs contend, that Judge Kaufman held the waiver of hearing before a committing magistrate on a criminal charge to be at most prima facie evidence insufficient to destroy the general averment of want of probable cause. However, it should be further noted that he continued, “There is not before me a motion for summary judgment.”

From the cases above cited, which we think are representative of the holdings in various jurisdictions, it seems clear that the majority — the only exception being some of the lower courts in New York-— have held that in actions for malicious prosecution the waiver o'f a preliminary hearing by a defendant in a criminal matter constitutes prima facie evidence of probable cause. This majority view is logical and fair and merely requires that a reasonable explanation be made to the court that there has in fact been a malicious prosecution notwithstanding the appearance to the contrary.

Plaintiffs were advised by the trial court at the time of the argument of the motion for summary judgment that in the view of the judge the petition stated no issue of fact and any references in the petition to the absence of probable cause were conclusions rather than facts. Plaintiffs nevertheless insisted that under the Wyoming Rules of Civil Procedure they were entitled to plead in a short and plain form, that when they pleaded defendants’ knowledge that the criminal charge against the Carters was false and that defendants had conspired together to file the criminal complaint for the fraudulent purpose of deceiving the justice they had stated ultimate facts upon which they were entitled to stand. We do not find any support for this contention and none is cited.

Under Penton v. Canning, supra, enunciating the principle which we think is applicable in the instant situation, it was here essential to a cause of action that the plaintiffs’ pleading contain averments showing fraud or other improper means of procuring the waiver of preliminary hearing. Since plaintiffs’ petition made no allegation that their waiving of preliminary examination resulted from improper means, it becomes unnecessary to discuss plaintiffs’ argument that they were entitled to make a short and plain statement of their claim in simple, concise, and direct averments under Rule 8(a) and (e), Wyoming Rules of Civil Proocedure, and that under Rule 9(b), Wyoming Rules of Civil Procedure, malice, intent, knowledge, and other conditions of mind may be averred generally.

Plaintiffs urge that the affidavit of the sheriff did not refute or deny any of the allegations of the petition. However, this is of no importance since a motion for summary judgment may be made wholly on the pleadings. Reynolds v. Needle, 77 U.S.App.D.C. 53, 132 F.2d 161; 6 Moore’s Federal Practice, 2d ed., p. 2063.

The philosophy expressed by Judge Cardozo long before the adoption of the Federal rules is as effective now as .it was on the day of its pronouncement and has often been quoted in connection with interpretations under Rule 56, 28 U.S.C.A.:

“ * * * The very object of a motion for summary judgment is to separate what is formal or pretended in denial or averment from what is genuine and substantial,- so that only the latter may subject a suitor to the burden of a trial. * * * ” Richard v. Credit Suisse, 242 N.Y. 346, 152 N.E. 110, 111, 45 A.L.R. 1041.

In discussing the subject, the court in Pen-Ken Gas & Oil Corporation v. Warfield Natural Gas Co., 6 Cir., 137 F.2d 871, 877, certiorari denied 320 U.S. 800, 64 S.Ct. 431, 88 L.Ed. 483, said:

“Rule 56 is a procedural device for the disposition of cases in which there is no material issue of fact and its purpose is to eliminate the formal trial of cases where only questions of law are involved.”

The petition in this case charged a wrong against defendants but it also contained a statement of the waiver of a preliminary hearing which under the law applicable in this jurisdiction was a prima facie defense against the wrong charged. If Rule 56 is to be meaningful, the parties at that stage are obligated to present to the court sufficient facts either by pleading or otherwise which would show that there is a material issue of fact to be tried.

Plaintiffs have pointed out that under §§ 7-155 to 7-179, inclusive, W.S.1957, there is no provision for any action to be taken by a justice of the peace when a preliminary hearing is waived and that upon defendant’s waiving preliminary examination the case automatically stops and it evolves upon the county and prosecuting attorney to promptly file an information in the district court charging defendant with the offense with which he is accused. It is not stated, but it would seem to be implied by this argument that a person charged with a crime could upon his waiver of a preliminary examination be free to go at large without further restraint unless again arrested. No authorities are cited either for the direct contention or the implication, and we do not think a discussion of the matter is necessary. Suffice to say that the statutes regarding the duties of the prosecuting attorney and the justice of the peace, although not as explicit as those in some states, read together have apparently been interpreted for many years as basis for the procedure whereby a person charged with a felony was retained under the jurisdiction of the justice of the peace until released for lack of probable cause or until taken into custody by the authorities under the jurisdiction of the district court. This would seem to be implied under the provisions of § 7-123, W.S.19S7.

The summary judgment entered by the trial court stated inter alia that “as a matter of law the facts as exhibited by the Amended Complaint, Motion and Affidavit, constitute probable cause, and judgment should be entered for defendants.” The record shows correspondence between court and counsel disclosing various matters which inclined the court to the holding that on the facts presented Davison had reason to believe plaintiffs to be guilty of the crime charged and that probable cause for the issuance of the complaint therefore existed. While it may be debatable that such a view was warranted, the summary judgment is not thereby rendered improper. It is the law of this State that an accused’s being bound over is prima facie evidence of probable cause to be overcome only by evidence that the action of the magistrate was obtained by false testimony or other improper means. We think this rule is applicable to a situation in which the binding over is a result of a defendant having waived his right to preliminary examination, the duly recognized means of determining whether a crime has been committed and whether there is probable cause to believe the defendant guilty of the offense.

In the instant situation plaintiffs did not plead or show that their waiving of preliminary examination was brought about by fraud or other improper means and accordingly the petition did not state a cause of action.

“ * * * if the pleadings or other proof of either of the parties disclose that no real cause of action or defense exists, the court may determine that there is no issue to be tried by a jury and may grant a summary judgment.” Pen-Ken Gas & Oil Corporation v. Warfield Natural Gas Co., supra, 137 F.2d at page 877.

Affirmed.

McINTYRE, j., not participating.

1 . Motion to dismiss the petition and the amended petition were sustained by the court aad in each instance plaintiffs filed amendments.

2 . Approved by this court in Arp & Hammond Hardware Co. v. Hammond Packing Co., 33 Wyo. 77, 236 P. 1033. And see King v. Giblin, 36 Wyo. 448, 256 P. 1035.