Davidson v. De Sousa

HOUSER, P. J.

From a judgment that was rendered

against him in an action for damages that arose from an alleged malicious criminal prosecution of plaintiff by defendant, the latter has appealed to this court.

The principal complaint of appellant is that the evidence was insufficient to support the judgment; and that especially was the evidence insufficient in regard to the findings that were made by the trial court to the effect that in causing the arrest and prosecution of plaintiff, defendant acted maliciously and without probable cause.

With respect to the evidence generally, it appears that the purported cause of the arrest of plaintiff arose from a dispute that occurred between plaintiff, who at the time was in defendant’s employ, and a foreman of a department of defendant’s business, in which dispute defendant later joined, with the result that a physical encounter occurred between

[313]

plaintiff and defendant in which defendant came off “second best”; following which, in the course of about a week next thereafter ensuing, with respect to the incident defendant reported it to the police department, had two separate interviews with his private attorney, consulted a deputy in the office of the district attorney, and thereafter swore to a criminal complaint by reason of which plaintiff was placed under arrest and lodged in jail. But on the preliminary hearing of the action plaintiff was discharged and the action was dismissed. As might be anticipated, on the question of how the fight between plaintiff and defendant started, who provoked the attack, and what each of the interested parties said or did in the course of the happening of the controversy and the resulting combat, were the subjects of much diverse testimony especially by the respective parties thereto; and as to the remaining witnesses, the testimony given by them differed greatly in substance and effect, one from the other, dependent almost entirely upon the “side” in favor of which any witness gave his testimony. Each of the principals charged the other as having been the persistent aggressor throughout. But however that in fact may be, judging from the findings which were made by the trial court, plaintiff’s version of the episode was that which was adopted as representing the truth and which reflected the situation as one in which plaintiff was consistently either acting in self-defense of defendant’s physical attacks upon him, or attempting by flight to altogether avoid such attacks. Nothing useful to anyone could result from an endeavor to herein set forth even a