Ross W. OVERSON, Appellant,
Joe LYNCH, E. T. Wilbur and Josephine Wilbur, husband and wife, et al., Appellees.
[83 Ariz. 159] Wallace O. Tanner, Phoenix, for appellant.
Earl Platt, St. Johns, for appellees E. T. Wilbur and Josephine Wilbur.
No appearance for appellee Lynch.
This is an appeal by Ross W. Overson, plaintiff-appellant, from an order granting motions of defendants-appellees, Joe Lynch, E. T. Wilbur and Josephine Wilbur, his wife, to dismiss the amended complaint on the ground that it fails to state any claim upon which the relief prayed for, or any relief at all, may be granted against the defendants.
We will set forth verbatim the pertinent part of the first cause of action:
'* * * the defendant E. T. Wilbur, while then and there acting on behalf[83 Ariz. 160] of himself and the community, consisting of himself and his wife Josephine Wilbur, and as agent of his wife, Josephine Wilbur, and with the knowledge and consent of his said wife, Josephine Wilbur, while contriving and maliciously, and without probable cause, intending to injure plaintiff, falsely, maliciously and without probable cause, and while being aided and abetted, counselled and advised by the said defendant Joe Lynch, and being under oath, made the following sworn statement:
"One Ross M. Overson on or about the 16th day of October, 1955, at St. Johns Precinct, County and State aforesaid, committed a Felony, to wit; Burglary in the First Degree, as follows, to wit:
"That the said Ross W. Overson did then and there wilfully, unlawfully and feloniously, in the nighttime, enter a building known as the 'Wilbur Food Market', situated in St. Johns, County of Apache, State of Arizona, with the intent therein to commit the crime of Grand Theft."
Thereafter, it is alleged in the pleading, a criminal warrant of arrest was wrongfully and unlawfully issued against the plaintiff due to the wrongful, unlawful and malicious acts and statements of defendants, Joe Lynch and E. T. Wilbur, which said acts were without probable cause. There is further contained therein allegations of the arrest and then the following appears:
'* * * on which last named hearing date it appeared that the defendant E. T. Wilbur, had failed to appear for any hearing on said case and that the defendant E. T. Wilbur had no evidence or testimony to present to said court to prove plaintiff, Ross W. Overson, guilty of said charge, and there being no prosecution thereof, the said Ross W. Overson was discharged by said Court and all further prosecution against said plaintiff was thereafter abandoned by the defendant herein.'
The pleading is concluded with an allegation for damages.
The second cause of action is substantially the same as the first except it is alleged that the defendant, Joe Lynch, while contriving and maliciously intending to injure plaintiff, falsely, maliciously and without probable cause and while being aided and abetted, counselled and advised by the defendant, E. T. Wilbur, wrongfully and unlawfully procured and caused a criminal warrant of arrest to be issued against plaintiff by falsely, maliciously and without probable cause making a statement, under oath, before the justice of the peace, that plaintiff was the person guilty of burglary; which statements were false and known to be false by defendant when they [83 Ariz. 161] were made, and together with the criminal complaint previously signed by defendant E. T. Wilbur resulted in a continuation of the criminal proceeding. The pleading then alleges the issuance of the warrant of arrest, the arrest, the abandonment of prosecution, and a claim for damages.
Plaintiff's assignments of error are to the issue of whether the complaint states causes of action for malicious prosecution. A complaint for malicious prosecution must allege (1) that there was a proseuction, (2) that it terminated in favor of plaintiff, (3) that defendants were prosecutors, (4) that they were actuated by malice, (5) that there was want of probable cause, and (6) the amount of damages sustained. Griswold v. Horne, 19 Ariz. 56, 165 P. 318, L.R.A.1918A, 862; Fowler v. Ruebelmann, 65 Idaho 231, 142 P.2d 594; 34 Am.Jur., Malicious Prosecution, section 111, p. 769.
Defendant F. T. Wilbur contends the complaint is defective in the following respects: (1) that it appears from the face of the ...