Myers v. City of Pocatello

559 P.2d 1136, 98 Idaho 168, 1977 Ida. LEXIS 338

• Court: Idaho Supreme Court
• Decided: February 9, 1977
• Docket: 11491
• Status: Published

Opinions

McFADDEN, Chief Judge.

This litigation arose as a result of an altercation on Union Pacific Railroad property in Pocatello, Idaho, on September 25, 1967. The altercation involved Joseph E. Myers, plaintiff and Warren Tyler, defendant, a Union Pacific employee. (Note that Tyler has neither appeared in this action nor been served with process.) In the complaint, it is alleged that following this fight, Tyler filed a criminal complaint in justice court on grounds of assault, it is further alleged that Myers was subsequently arrested on the criminal complaint of defendant Jay Jensen, a city police officer.

On June 11, 1970, the criminal complaint was dismissed by the district court. On Monday, June 12, 1972, Myers filed the present complaint against Tyler, Union Pacific, Jensen, and the City of Pocatello, seeking damages for physical injuries and pain and suffering as well as lost wages, damages to clothing and attorneys’ fees. The district court dismissed the action as against all named defendants on the basis that the applicable statutes of limitations had run. Appellants claim that the trial court erred in dismissing the action because the facts as alleged in the complaint are sufficient to allow a claim of relief for malicious prosecution to be inferred, which they maintain would not be barred by the statute of limitations provision because it was timely filed.¹ Appellants do not assign as error the dismissal of possible claims of false arrest, false imprisonment and assault and battery. In addition, no issue is raised on this appeal as to the propriety of raising the affirmative defense of the bar of the statute of limitations by a 12(b) motion to dismiss.

The language in the complaint in which appellants maintain a claim of malicious prosecution can be found reads as follows:

“That on to-wit, September 25, 1967, the said defendant Tyler assaulted, struck and beat the plaintiff Myers and inflicted severe and permanent bodily injury upon him and such assault was committed on the property of the defendant railroad company in Pocatello, Idaho; that thereafter the said defendant Tyler filed a criminal complaint against the plaintiff Myers in the Justice Court of Pocatello Precinct, Bannock County, Idaho; that thereafter the plaintiff was arrested and thrown in Pocatello City Jail upon the Complaint of the defendant Jay Jensen instigated by the defendant Warren R. Tyler, Jr. and without knowledge or probable cause on the part of said defendant Jay Jensen.”

“That no prosecution Under said Complaint was ever held and on the 11th day of June, 1970, said criminal cause was dismissed by Honorable Gus Carr Anderson, District Judge, of the above Court for lack of prosecution.”

The elements of malicious prosecution have been stated by this court as follows: (1) that there was a prosecution, (2) that it terminated in favor of the plaintiff, (3) that the defendant was the prosecutor, (4) that the defendant was actuated by malice, (5) that there was want of probable cause, and (6) that damages were sustained. Russell v. Chamberlain, 12 Idaho 299, 85 P. 926 (1906); Howard v. Felton, 85 Idaho 286, 379 P.2d 414 (1963); Robinson v. White, 90 Idaho 548, 414 P.2d 666 (1966). As a general rule a claim of relief for malicious prosecution accrues at, and the limitations run from, the date on which the prosecution was terminated. See Babb v. Superior Court of Sonoma County, 3 Cal.3d 841, 92 Cal.Rptr. 179, 479 P.2d 379 (1971); Muller Fuel Oil Co. v. Ins. Co. of No. America, 95 N.J.Super. 564, 232 A.2d 168 (1967). In the present case, the criminal complaint against the appellant was dismissed on June 11, 1970. The statute of limitations could not, therefore, begin to run until that date. Since the present complaint was filed on June 12, 1972, appellants did comply with the four-year limitations provision of I.C. § 5-224.²

The basic issue before this court is, therefore, whether a claim of malicious prosecution is sufficiently set forth by the language of the complaint. Considering the foregoing elements of malicious prosecution, it is clear that this complaint does not fully set them forth. The complaint fails to allege that the defendants) acted with malice, which appellants contend can be inferred from the language of the complaint. We disagree. A complaint which fails to allege a malicious intent of the plaintiff is not couched in terms of a claim of malicious prosecution. Since no claim of malicious prosecution is alleged, and since all other claims are barred by the respective statutes of limitations, the complaint was properly dismissed by the district court.

Appellants also maintain that they should be allowed to amend their complaint to include an allegation of malice. They made no such motion before the district eourt. This court has long held that a failure to move to amend a complaint in the lower court forecloses a plaintiff from raising the issue on appeal. In Gough v. Tribune-Journal Co., 73 Idaho 173, 249 P.2d 192, 196 (1952), this court stated,

“The appellants did not ask leave to amend the complaint either before or after judgment. If the appellants were unjustly deprived of the right to amend, the question should have been raised in the district court and not for the first time on appeal. Where no application to amend is made and no amendments suggested, and where it affirmatively appears that the complaint could not be amended so as to state a cause of action, by innuendo or otherwise, and no suggested amendments, either before or after judgment, in the trial court are advanced, it is not error on sustaining the demurrer to dismiss the action.” (Citations omitted).

This principle was restated in Walker v. Idaho Board of Highway Directors, 96 Idaho 41, 524 P.2d 169, 172 (1974).

“Appellants also assign error in the dismissal of their action by the trial court without leave to amend. Appellants argue that the trial court erred in so granting summary judgment in that it should have allowed them leave to amend their complaint to allege theories of contract, warranty and estoppel. Even the most liberal reading of plaintiffs’ complaint fails to provide a basis of construction that these theories were pleaded. We agree with appellants that amendment should be freely allowed where justice would be served thereby. I.R.C.P. 15(a). Nevertheless, appellants have not pointed out nor has our own examination revealed that appellants ever filed a motion to so amend the complaint. In the absence of such a motion we find no error in the action of the district court and the judgment of dismissal is affirmed.

Judgment is affirmed, costs to respondents.

DONALDSON and SHEPARD, JJ., concur.

1 . It should be noted that on this appeal, appellants are represented by counsel other than the attorney which represented them in the district court.

2 . I.C. § 5-224, “Actions for other relief. — An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.”