Gustason v. Speak

[19]

CONREY, P. J.

The plaintiff brought this action to recover damages for malicious prosecution of a criminal action against the plaintiff. In accordance with the verdict of a jury, judgment was entered for plaintiff in the sum of $500. Thereafter the defendant moved for a new trial. The court granted said motion and in its order specified that the motion was granted upon the ground that the evidence does not support the verdict. From said order plaintiff appeals.

The plaintiff as a physician had rendered professional services to the wife of respondent A. J. Speak, and for those services had made a charge of $200. Mr. Speak contended that the charge was excessive. After the disagreement had continued for some time Speak sent to the plaintiff a check for $125 with a notation thereon in the words “Payment in full to date.” Thereafter the plaintiff pasted over the defendant’s notation on the check a slip of paper on which he had written the following: “Applies on account statement rendered,” and stamped thereunder with a rubber stamp his own name and address. With the check in that condition he presented the same to the bank for payment. On being informed of these facts, Mr. Speak ordered payment stopped on the check. Thereafter Speak discussed this matter with his attorney, who advised him to see the district attorney. For the purpose of showing said check to the district attorney Speak obtained possession thereof from a justice’s court, where it had been filed in an action of Gustason to recover on his claim, and took it to the office of the district attorney, where he exhibited the check and made a statement of facts. According to his own testimony, Speak told the district attorney that there had been a dispute between him and the doctor, and that he had made his check • a receipt to show that it cleared him of a $200 charge “if this check came through so and so, but when it came through here is the condition it is in.” Thereupon the district attorney prepared a complaint charging the defendant with forgery and told Speak to take the papers to the justice’s court. Speak complied with this instruction and made affidavit to the complaint. According to Speak’s testimony, he believed that plaintiff “was guilty of some offense there.”

The deputy district attorney who had the interview with Speak stated that he issued the complaint because he thought