Williams v. California Milk Producers Ass'n

BARNARD, P. J.

This is an action for damages for malicious prosecution. The defendant corporation was engaged in the business of retailing milk in the city of San Bernardino and defendant Schnepp was its route foreman. About four months prior to March 3, 1932, the plaintiff entered the milk business in San Bernardino and by personal solicitation obtained some one hundred and forty customers, taking from thirty per cent to forty per cent of them from the defendants. Shortly before 4 o’clock on the morning of March 3, 1932, plaintiff delivered a bottle of milk to one of his customers, picking up five empty milk bottles from the customer’s porch. As he returned to his loaded milk truck the defendant Schnepp, who had been appointed a special deputy sheriff, appeared and arrested him, although the plaintiff told him that he was delivering milk there and had a right to take the bottles. It conclusively appears that it had long been the custom in San Bernardino for all milk dealers to pick up all empty milk bottles as they delivered milk to their customers, regardless of the ownership of the bottles, turning the same in to a bottle exchange where they were sorted and returned to their respective owners. It further appears that the defendants knew of this custom, that they were themselves conforming to this practice, and that they had been in the habit of doing this very thing

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at the house where the plaintiff had just delivered this milk. Sehnepp compelled the plaintiff to leave his truckload of milk standing in the street and took him to the police station, where he had him booked on a charge of stealing the bottles. He told the desk sergeant to hold the plaintiff for an hour and then release him.

The plaintiff was ordered to return at 10 o’clock the same morning and, at that time, the acting police judge asked him whether he was guilty or not guilty. The plaintiff replied: “I was the fellow that got the bottles but I didn’t have no intention of stealing them.” The acting police judge was not called as a witness in this ease, but his records were introduced, which show that he entered a plea of guilty and fined this plaintiff $10, suspending the sentence for one year. As to what occurred in the police court one of the appellant’s delivery men testified as follows: “Well, as I recall it, he admitted taking the bottles and came right back by saying he was allowed to take them, didn’t say he stole them, but said he took the bottles, but was supposed to take them, didn’t make a direct answer, guilty or not guilty.” The respondent did not know that a plea of guilty had been entered until he read it in a newspaper the next morning. He immediately consulted an attorney, who filed a motion, supported by affidavits, to cancel and set aside the plea of guilty on the ground that no such plea had been made. The motion was granted on stipulation of the city attorney, a plea of not guilty was entered and the case set down for a jury trial. After a couple of continuances the case was dismissed for failure to prosecute and this action followed. The court found in all respects in favor of the plaintiff, giving him, judgment for $500, from which judgment this appeal is taken.