Appeal from the Circuit Court of Crawford County; the Hon.
Robert W. Whitmer, Judge, presiding.
PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The plaintiff, Mervin L. Rich, appeals from a judgment of the circuit court of Crawford County that dismissed with prejudice his second amended complaint alleging malicious prosecution. In dismissing the complaint, the court found as a matter of law that there had been "no final factual determination in favor of the plaintiff" in the criminal case referred to in the plaintiff's complaint in that the criminal proceeding against the plaintiff had been dismissed pursuant to the plaintiff's motion alleging violation of his right to speedy trial. The sole issue upon appeal is whether dismissal of the underlying criminal charge on speedy-trial grounds pursuant to the plaintiff's motion constituted a termination of the proceeding in favor of the plaintiff as required to state a cause of action for malicious prosecution. We hold that it did and accordingly reverse the judgment of the trial court.
• 1, 2 In order to state a cause of action for malicious prosecution, a plaintiff must allege facts showing (1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant, (2) the termination of the proceeding in favor of the plaintiff, (3) the absence of probable cause for such proceeding, (4) the presence of malice, and (5) damages resulting to the plaintiff. (Joiner v. Benton Community Bank (1980), 82 Ill.2d 40, 411 N.E.2d 229.) The requirement of the favorable termination for the plaintiff on the original charge has been justified on the grounds of showing lack of probable cause for the prosecution and of avoiding collateral attack on, and possibly inconsistent results with, the previous judgment. (See Prosser, Torts sec. 119, at 838 (4th ed. 1971); Savage v. Seed (1980), 81 Ill. App.3d 744, 401 N.E.2d 984.) While the plaintiff in a malicious prosecution action must prove termination of the former action in his favor, it is not essential that there have been a trial and verdict of acquittal upon the charge involved. (Gilbert v. Emmons (1866), 42 Ill. 143; Joiner v. Benton Community Bank (1979), 76 Ill. App.3d 871, 395 N.E.2d 691, rev'd on other grounds (1980), 82 Ill.2d 40, 411 N.E.2d 229.) The prior criminal proceeding, however, must have been terminated in a manner indicative of the innocence of the accused, and a plaintiff who enters into or procures a compromise or agreement for dismissal of the charges against him may not bring an action for malicious prosecution based upon those charges. Joiner v. Benton Community Bank (1980), 82 Ill.2d 40, 411 N.E.2d 229; Stanger v. Felix (1981), 97 Ill. App.3d 585, 422 N.E.2d 1142; Ewe v. Angland (1945), 325 Ill. App. 677, 60 N.E.2d 774.
We have found no Illinois case dealing with the instant issue of whether dismissal of a criminal charge on speedy-trial grounds constitutes a termination in favor of the plaintiff for purposes of a malicious prosecution action. Instructive in this regard, however, are Illinois cases involving termination of a prior criminal proceeding short of acquittal on the merits. In Gilbert v. Emmons, dismissal of a criminal charge upon failure of the grand jury to return a true bill was held to be sufficient to maintain an action for malicious prosecution. The court observed that, if malicious prosecution were barred in such an instance,
"a perfectly innocent man, wantonly arrested upon a criminal charge
would be obliged, in order to secure a right of redress against his accuser, to insist that a grand jury should find a bill, and the forms of a trial had. But it would not be in his power to do this
* * * [and he would thus] be without means of redress." (Gilbert v. Emmons (1866), 42 Ill. 143, 145-46.)
Similarly, in Reell v. Petritz (1922), 224 Ill. App. 65, dismissal of a larceny charge against the plaintiff at the instance of the prosecutor during hearing before the examining magistrate was held to be a termination of the proceeding for the plaintiff, and, in Farris v. Messimore (1920), 219 Ill. App. 582, dismissal of a theft charge against the plaintiff by the justice of the peace upon failure of the complaining witness to appear was properly characterized as a complete termination of the proceeding for the plaintiff in his complaint for malicious prosecution.
While the "favorable termination" requirement was met in these cases involving dismissal of criminal charges at the instance of the prosecutor or complaining witness, a contrary result was reached where the dismissal was brought about or agreed to by the plaintiff so as to be indicative, not of the plaintiff's innocence, but of his guilt. (See Joiner v. Benton Community Bank (1980), 82 Ill.2d 40, 411 N.E.2d 229 (agreement by plaintiff to pay bank in return for dismissal of theft charges against him precluded bringing of malicious prosecution action); Stanger v. Felix (1981), 97 Ill. App.3d 585, 422 N.E.2d 1142 (dismissal of criminal charges against plaintiff not "favorable termination" where plaintiff placed on court supervision pursuant to court's order stating that facts were sufficient for finding of guilt); Ewe v. Angland (1945), 325 Ill. App. 677, 60 N.E.2d 744 (malicious prosecution action could not be maintained where dismissal of criminal charges resulted from free agreement of parties).) Such a rule is justified on the grounds that the plaintiff, in entering into or procuring a compromise or agreement for dismissal of the charges against him, admits the existence of probable cause so as to preclude an action for malicious prosecution. Joiner v. Benton Community Bank (1980), 82 Ill.2d 40, 411 N.E.2d 229.
Unlike these latter cases in which termination of the criminal proceeding was procured by the plaintiff in a way indicating guilt of the crime charged, the instant proceeding was terminated, though on the plaintiff's motion, as a matter of right due to the prosecutor's failure to proceed to trial in a timely fashion. Courts in other jurisdictions have invoked the distinction between termination procured by the accused and termination brought about as a matter of right because of inaction on the part of the prosecutor to uphold malicious prosecution actions based upon dismissal of the prior charges on speedy-trial grounds. In Lenehan v. Familo (1981), 79 App. Div.2d 73, 436 N.Y.S.2d 473, the plaintiff instituted a malicious prosecution action after a prior criminal charge had been dismissed for lack of a speedy trial. The reviewing court held that this dismissal constituted a favorable termination of the underlying criminal proceeding, as
"there [was] no evidence to indicate any misconduct or other impropriety on plaintiff's part in seeking the dismissal
[and] [the plaintiff had merely] exercised a statutory right founded upon the unexplained and unexcused failure of the People to pursue the prosecution." (79 App. Div.2d 73, 76, 436 N.Y.S.2d 473, 475.)
The court concluded that while, ordinarily, an action for malicious prosecution would not lie "where the termination of a criminal prosecution [had] been procured by the accused, * * * [t]hat rule was not applicable * * * where the termination was brought about as a matter of right and without fraud, deception or other misconduct on the part of the accused [citations]." 79 App. Div.2d 73, 76, 436 N.Y.S.2d 473, 475.
Similarly, in Gumm v. Heider (1960), 220 Or. 5, 348 P.2d 455, in which the underlying criminal charge was dismissed for failure of the district attorney to submit an indictment to the grand jury within the required time, the court distinguished between termination of an original proceeding by procurement of the accused "as a matter of favor * * * or [other] device preventing action and consideration by the court" (220 Or. 5, 24, 348 P.2d 455, 464) and that resulting from inaction on the part of the prosecutor or complaining witness. The plaintiff in that case ...