Eastin v. Bank of Stockton

California Supreme Court Nov 22, 1884 No. No. 8,045Published

Before: Morrison, Ross, Thornton

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Holding. The court held that an action for malicious prosecution of a civil suit may be maintained in California even where no process other than a summons was issued, provided the suit was brought maliciously and without probable cause. However, the trial court erred by delegating the determination of probable cause to the jury and by failing to limit the recovery of legal expenses to those that were reasonable and necessary.

Issues

Whether an action for malicious prosecution of a civil suit is maintainable when no process other than a summons was issued.
Whether the determination of probable cause in a malicious prosecution action is a question of law for the court or a question of fact for the jury.
Whether a plaintiff in a malicious prosecution action is entitled to recover all legal expenses incurred in the prior suit regardless of their reasonableness.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Where the damages sustained by the defendant in defending a suit maliciously prosecuted without reasonable or probable cause, exceed the costs obtained by him, he has, and of right should have, a remedy by action on the case.”

Synopsis

Malicious Prosecution-—Probable Cause.—In an action for malicious prosecution, the question whether the facts as found by the jury constitute probable cause should be determined by the court, and not by the jury. Id.—Malicious Prosecution of a Civil Case.—An action may be maintained for the malicious prosecution of a civil action, begun and carried on with malice, and without probable cause, although no process other than a summons was issued in the action complained of.

Id.—Damages—Instructions.—In an action for malicious prosecution of a civil case, it is error to instruct the jury that if they find for the plaintiff, they should allow him all that he paid out in the former suit, “both counsel fees and other expenses,” without reference to whether such counsel fees and expenses were reasonable or not.

Opinion — Ross

Ross, J. -This cause of action set forth in the complaint is, that in the month of August, T874, the plaintiff: executed to the firm of J. H. Barney & Co. his two certain promissory notes— one for the-sum‘Af™$lB0, and the other for the sum of.J§Mi=— which notes he paid in December of the same year at the Bank of Stockton, with the knowledge of the president, cashier and managing agent of the bank; that after the notes had been so paid and had been delivered up, plaintiff lost them; and the bank, by some means to the plaintiff unknown, became possessed of them; that thereafter, and in the year 1876, the bank and its [124]co-defendant, Hogan, entered into a conspiracy for the purpose of blackmailing plaintiff, and extorting money from him by means of the possession of the notes and the supposed inability of the plaintiff to produce evidence of their payment, and that it was agreed and understood between the bank and Hogan that each should receive an equal part of whatever money they might succeed in extorting from the plaintiff, and that each should bear an equal part of the expenses incurred in carrying out the conspiracy ; that in pursuance of the conspiracy, defendant, on the 5tli of August, 1878, willfully, maliciously, and without reasonable or probable cause, and with intent to vex, harass and injure the credit of plaintiff, and to put him to cost in and about his defense, or to compel him to submit to their extortionate demands, commenced an action in the district court of the Fifth Judicial District of the State of California, for the recovery of the sums for which the notes had been given, but which defendants at the time well knew had been fully paid; that process in that action was served on the present plaintiff, who was obliged to employ counsel to defend the suit at a cost of $600, and to incur a further expenditure in defense thereof of $75; that by reason of the commencement and prosecution of that action the plaintiff was damaged in the further sum of $5,000, by way of injury to his credit, neglect of his business, etc.; that the action resulted in a judgment for the then defendant—plaintiff here.

The answer of the defendants put in issue the material averments of the complaint, and a trial was had with a jury, resulting in a verdict for the plaintiff for the sum of $3,000 ; and judgment was entered against the defendants for that sum and costs.

A large number of objections were taken by the defendants to the proceedings in the court below—among them exceptions to the giving and the refusal to give certain instructions to the jury. The instructions given were erroneous in several particulars. In several instances the jury was told, in effect, that it was for them to decide whether or not there was probable cause for the prosecution of the suit against the plaintiff. Thus, the court told the jury: “ If, from the evidence, you find that in the instituting of the suit of the Bank of Stockton v. Eastin there was no probable cause, and that the defendants were actuated

Eastin v. Bank of Stockton

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Synopsis

Opinion — Ross

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Concurrence — Morrison

Concurrence — Thornton

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