Griswold v. Griswold

THE COURT.

Plaintiff and defendant are brother and sister. The action was brought to recover damages for malicious prosecution. The complaint alleges that the defendant maliciously and without probable cause made an affidavit and petition charging plaintiff with being insane, and upon such affidavit and petition procured the plaintiff’s arrest and imprisonment in the insane ward of the county hospital of the county of Los Angeles; that plaintiff was not insane at the time she was so arrested, and that she was duly discharged from said arrest and imprisonment; that she was greatly injured in body, mind and reputation by reason of said arrest and imprisonment, to her damage in the sum of fifty thousand dollars.

Defendant, in his answer, did not deny the allegation “that plaintiff was not insane” at the time she was so arrested. He denied that he acted maliciously or without probable cause, and affirmatively alleged that for a

long time

prior to her arrest the plaintiff resided in the city of Los Angeles with the mother of plaintiff and defendant, together with a sister and nephew; that prior to her arrest she had frequent fits of violence and excitement, and committed divers irrational acts, and made divers threats and attempts to do bodily harm to members of the family and other persons without provocation; that she threatened to kill her sister, concealed, damaged, and destroyed property, and did other irrational things; that defendant fully and fairly reported all said facts to a physician who was and had been the regular family physician of the family and of plaintiff, and said physician expressed the opinion that plaintiff was insane, and advised that proceedings be taken for her examination; that defendant in good faith, without malice, and believing, and having cause to believe, that plaintiff was insane, and deeming it for the best interests of plaintiff, and

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for the protection of others, believing it to be his duty, he made the affidavit and procured the arrest of plaintiff; that he acted in good faith, and without" malice or ill-will toward plaintiff.

The case was tried before a jury and a verdict rendered in favor of plaintiff for six thousand dollars, upon which judgment was entered. This appeal is from the judgment and order denying defendant’s motion for a new trial. Respondent has not filed any points or authorities, and hence our labor has been greater than it would have been had we received the assistance of counsel. Many witnesses were examined and much evidence introduced on the issues as to malice and want of probable cause. It is not necessary to narrate the evidence as to the many acts of violence and peculiar conduct of plaintiff. It may be conceded (for the purposes of this case) that there is sufficient evidence to sustain the verdict of the jury both as to malice and want of probable cause, but we have concluded that the case must be reversed on the ground of errors of the trial court in giving improper instructions to the jury. Defendant, when on the stand testified fully as to stating all the facts and circumstances concerning plaintiff’s violence, threats, and conduct to Dr. E. R. Smith, the family physician, and that the doctor upon such statement told defendant that plaintiff was unbalanced, and, in his opinion, that she was insane. Dr. Smith testified fully, without objection, to all the statements made to him by defendant, that he was consulted by defendant, and that he believed the plaintiff was insane, and so advised defendant.