Richter v. Neilson

The plaintiff, Ernest Richter, sued the defendant, Mrs. Irene A. Neilson, for malicious prosecution, and upon trial before the court sitting without a jury was given judgment for damages in the sum of $1150, from which judgment defendant appeals. The action grew out of plaintiff’s arrest on a grand theft charge filed against him on May 6, 1932, by the defendant after consultation with a deputy district attorney who drew the criminal complaint and authorized the issuance of the warrant of arrest. The specific charge made against plaintiff was that he unlawfully took $265 of the personal property of Mrs. Neilson. He was arrested on May 12, 1932, and after being imprisoned for an hour was released on bail. His preliminary examination began shortly after his arrest, but was continued some ten times, and on August 9, 1932, the magistrate dismissed the case upon the ground of insufficiency of evidence. Approximately six months later plaintiff brought the present action. As grounds for reversal defendant contends that the evidence is legally insufficient to support the findings or judgment, and that the trial court erred in excluding certain testimony offered by her in refutation of the charge of malice! In our opinion each contention so made by defendant must be sustained.

With respect to the law governing the case, it has been repeatedly declared by the courts of this state that actions for malicious prosecution have never been favored in the law; and while they have been readily upheld when the proper elements thereof have been established, they are sustained only when it is shown that the prosecution was in fact actuated by malice and the party instigating the same had no reasonable ground for causing the prosecution. Considerations of public policy are given as the reasons for so holding, it being said in this regard that it is for the best interests of society that any person who has good reason to believe the law has been violated shall have the right to cause the arrest of the offender, and consequently for his protection

Furthermore, it is well settled that the element of malice thus required to be established must be actual malice (16 Cal. Jur. 735), which, as pointed out in Jenkins v. Gilligan, 131 Iowa, 176 [ 108 N. W. 237 , 9 L. R. A. (N. S.) 1087 ], is vastly different from mere negligence. As there stated, the characteristics of mere negligence are inadvertence or absence of intent to injure; whereas to constitute malice there must have been a motive or purpose, and it must have been an improper one. As there stated also, the malice requisite to a cause of action for malicious prosecution is not the same thing as the failure to act as a reasonable person would under the circumstances. True, the rule does not require a plaintiff to show that the prosecution was impelled by personal hostility, a grudge, or ill will; but there must be evidence importing bad faith or want of sincere belief that the facts and circumstances justify the prosecution; and the malice must refer to the mind and judgment of the prosecutor in the exercise of the particular act charged as a malicious prosecution. (Griswold v. Griswold, supra; Fleischhauer v. Fabens, 8 Cal. App. 30 [ 96 Pac. 17 ].)

Moreover, it has long since been the law that if in addition to his own belief a defendant proves that before commencing the prosecution of the action alleged to be malicious he sought the legal advice of an officer selected by the people to prosecute offenders against laws and in good faith fully and fairly disclosed to that officer all of the information he possessed and was then advised that a crime had been committed and the prosecution is based upon a complaint prepared by that officer, he has made out a complete defense to the action (Dunlap v. New Zealand F. & M. I. Co., supra; 16 Cal. Jur. 741, and cases cited under note 12; Ball v. Rawles, supra; Hahn v. Schmidt, 64 Cal. 284 [ 30 Pac. 818 ]), however erroneous the advice may have been (Potter v. Seale, 8 Cal. 217 , 218, 226; 18 R. C. L. 45); and such defense may be interposed and proved under the general issue. (Levy v. Brannan, 39 Cal. 485 ; 16 Cal. Jur. 746.)

In the present case the circumstances leading up to plaintiff’s arrest were as follows: In October, 1931, he entered into a verbal contract with Mrs. Neilson and her sister to install a heating plant and certain plumbing in an apartment house recently acquired by them on Jackson Street in San Francisco, and to furnish all materials and labor necessary to complete the job. The agreed contract price was

Before the work was begun nothing was said as to how or when the contract price should be paid, but during the progress of the work plaintiff demanded and received three payments, aggregating $665, claiming that such payments were necessary to finance the job and pay materialmen. One payment was for the sum of $265. It was made on April 4, 1932, and was afterwards selected by the deputy district attorney as the basis for the criminal charge. Mrs. Neilson claimed that at the time plaintiff demanded said payment he represented that it was necessary for him to have the money to pay the account of the Kewanee Boiler Company, which had furnished much of the material; that if such payment were made he would be able to obtain a discount and preserve his credit, and that later he would produce the receipted bills to show that the money had been so applied. The work was practically completed on April 8, 1932, at which time plaintiff took away most of his tools and materials. On that day also he demanded and was paid an additional $100, leaving a balance due of $185 on the agreed contract price of $950. About a week later Mrs. Neilson requested him to do a few other small jobs and he promised to attend to the matter the next morning. He failed to appear, however, and within the next few days, after trying to reach him by phone, Mrs. Neilson went to his shop and found it vacant. She was informed by a man in charge there that a day or two previously plaintiff had removed or disposed of his equipment and left town. Shortly thereafter several materialmen called on Mrs. Neilson, and after inquiring as to plaintiff’s whereabouts, demanded payment of the balance due on their accounts, and threatened to file liens against the premises at once unless the accounts were paid. One was the representative of said boiler company, who informed Mrs. Neilson that only $100 had been paid on its account and that there was still due approximately $265. Being thus threatened with the filing of liens and being unable to get in touch with plaintiff otherwise, • Mrs. Neilson, who is referred to in the briefs as an

Shortly after the arrest was made it was disclosed that a day or two after having received the check for $265 plaintiff applied the proceeds of that particular check to the partial payment of various bills against the job, $100 of which was paid on the account of said boiler company; moreover, he denied having made any representations or promises whatever at

Measured by the legal standards hereinabove set forth, the evidence, in our opinion, is legally insufficient to establish a case of malicious prosecution, first, for the reason that the record reveals no direct evidence to prove that the defendant was actuated by any malicious motives, nor in our opinion were any circumstances proved from which an inference of

Plaintiff argues that there was a want of probable cause, and that malice may be inferred therefrom. We find no merit in the point. The rule is that where there is no substantial conflict in the evidence the question of what facts and circumstances amount to probable cause is one of law (Booraem v. Potter Hotel Co., 154 Cal. 99 [ 97 Pac. 65 ] ; Holliday v. Holliday, 123 Cal. 26 [ 55 Pac. 703 ]; Ball v. Rawles, supra; Moore v. Durrer, 127 Cal. App. 759 [ 16 Pac. (2d) 676 ]; Haydel v. Morton, supra); and that no presumption of malice arises from a want of probable cause. (Griswold v. Griswold, supra.) Moreover, probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting; and the question of whether there was probable cause must be determined from the facts as they existed and appeared to the party prosecuting at the time he preferred the charge. (Harkrader v. Moore, 44 Cal. 144 ; Griswold v. Griswold, supra.) Conceding, therefore, that the facts surrounding this particular payment of $265, as they were disclosed after plaintiff’s arrest and at the preliminary examination, failed in point of law to establish the commission of a crime, it does not follow therefrom as a matter of law that the situation existing and as it appeared to defendant at the time she swore to the complaint, which was brought about mainly by plaintiff’s own peculiar conduct, would not induce in the mind of a reasonably prudent person the honest belief that a crime had been committed. (Dunlap v. New Zealand F. & M. I. Co., supra.) As said in substance in Jones v. Jones, 71 Cal. 89 [ 11 Pac. 817 ], where a person so surrounds a transaction with circumstances of his own creation, real or adventitious, indicating that he is guilty of an unlawful act, he should not be heard afterwards to complain that others acted upon the hypothesis thus supported by his conduct. In any event, and entirely aside from the question of whether the circumstances themselves were legally sufficient to constitute probable cause, the defendant was entitled to the benefit of the rule that where one, before instituting the prose

Plaintiff asserts, however, that the defendant made certain false statements to the deputy district attorney, which shows a malicious motive and excludes the defense of “advice of counsel”. These assertions, in our opinion, are based either upon a misinterpretation of the evidence or upon theories unsupported thereby. For example, the principal one relied on is founded on the false assumption that the defendant knew at the time she consulted the deputy district attorney that plaintiff had applied all of the proceeds of the $265 check to the payment of bills against the job, and that she failed to reveal such knowledge to said deputy. It is true, the testimony shows that she knew before filing the complaint that plaintiff had paid $100 on the boiler company’s account and $25 on the account, of the mechanic who constructed the chimney, but it also shows that she had no knowledge whatever that the proceeds of this particular check for $265 had been applied to the payment of the two accounts above mentioned or to the payment of any other bills against the job; and at the time she was informed of the partial payments on the two accounts mentioned she was also told that there were still large sums due on those accounts; and besides at the same time a number of other creditors were clamoring for their money and threatening to file liens against the job. Nor did the deputy district attorney testify, as plaintiff implies, that if defendant had told him the truth no warrant of arrest would have been issued. On cross-examination by plaintiff’s counsel and in answer to a hypothetical question which the witness repeatedly declared did not correctly state the facts, he replied simply that if a contractor received $265 on a completed contract “and actually paid it for material and labor used” in performing the contract, no criminal offense, in his opinion,

Nor was it incumbent upon defendant, as plaintiff argues, to consult a private attorney before laying the matter before the district attorney’s office. (Dunlap v. New Zealand F. & M. I. Co., supra.) After having tried in vain for three weeks to locate him and having good reason to believe from what had transpired during his absence that she had been defrauded, she was doubtless warranted in bringing the ease directly to the attention of the prosecuting authorities.

We are also unable to sustain plaintiff’s contention that a legal duty was imposed on defendant “to check up on the actual payments” which had been made by plaintiff before swearing to the complaint, and that her failure so to do was evidence of malice. The rule is that if there are any circumstances within the knowledge of the prosecuting witness, or which he is chargeable with knowing, which would destroy the apparent effect of the facts stated by him, or if,

As further evidence of malice plaintiff calls attention to certain testimony showing that at a conference held between plaintiff’s attorneys and defendant after plaintiff’s arrest defendant was informed that plaintiff had actually used the $265 to pay bills against the job, and that nevertheless she refused to “drop” the prosecution unless plaintiff paid the balance of the outstanding bills. It has been held, however, that transactions occurring subsequent to the commencement of the criminal proceedings are not to be considered. in determining the question of malice. (Hanchey v. Brunson, 175 Ala. 236 [ 56 So. 971 , Ann. Cas. 1914C, 804].)

As to the second ground urged for reversal, the record shows that in refutation of the charge of malice and for the purpose of showing good faith on her part, Mrs. Neilson sought to prove by her own testimony and that of Duncan Matheson the nature of the advice she received from him before going to the district attorney’s office; and the evidence was excluded on objection of plaintiff. In our opinion its exclusion was error. As the authorities point out, malice being the main indispensable element of an action of this kind, not only is a plaintiff given a very wide range in proving facts

The judgment is reversed.

Tyler, P. J., and Cashin, J., concurred.

A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 30, 1936.