Foster v. Banks

ARCHBALD, J., pro tem.

H. H. Foster and Rena E. Foster, husband and wife, the plaintiffs and respondents, each filed separate complaints in the superior court for damages for alleged malicious prosecution, against the defendant and appellant, Maude Stock Banks. Afterward on stipulation to that effect an order was made consolidating the cases for the purposes of trial, the jury to return one verdict in both cases, one memorandum of costs to be filed, and it was further stipulated and ordered that “in all further proceedings said actions shall be treated as one case”. The actions' so consolidated were tried before a jury, which returned a verdict in favor of the plaintiffs for $2,500, of.

[624]

which amount $1500 was designated as actual and $1,000 as exemplary damages. From the judgment entered upon said verdict and from an order denying defendant’s motion for a new trial the defendant has appealed.

The plaintiffs were employed by one John M. Seitz at his home near Covina called “The Cloisters”, for several years, when the estate was sold to the defendant, the plaintiffs continuing in her employment after such sale. On July 20, 1922, appellant swore to a complaint before the justice of the peace of Covina township, charging respondents with stealing certain household furniture and furnishings of the value of approximately $1,000; thereafter and before the trial thereof in said Covina township appellant swore to another complaint before a justice of the peace of Los Angeles township charging plaintiffs with the crime of grand larceny, on which complaint plaintiffs were held to answer to the superior court. The case pending in the justice’s court of Covina township was dismissed on motion of the district attorney two days after filing of the complaint in the justice’s court of Los Angeles township. An information was filed in the superior court February 16, 1923, to which the plaintiffs here, as defendants, pleaded “not guilty”. The cause was partly tried beginning June 6, 1923, ending with the disagreement of the jury, and the case was dismissed on motion of the district attorney on account of insufficiency of the evidence and respondents’ bonds were exonerated.

Appellant contends that the warrant was issued only after the district attorney had made an independent investigation and advised her to do so and after a full and fair disclosure of all the facts to him and to her own attorney, who also advised her she had probable cause, but that he preferred to lay the matter before the district attorney’s office before anything was done. The above facts were substantially alleged as a separate defense to the action, as well as the further fact that she filed the complaints in good faith after receiving such advice; and it is argued that appellant’s actions after such disclosures and under such circumstances do not make her liable in damages for malicious prosecution. Respondents admit the rule of law contended for by appellant, but urge that as to the district attorney, the evidence does not show that any independent investigation was made