Phelps v. Cogswell

Foote, C. This action was for malicious prosecution. The plaintiff, Phelps, it appears, was arrested by a police officer of the city of San Francisco, under a warrant which was issued under a complaint verified by Cogswell, charging the former with having assaulted him on a street of said city. In making this arrest, the officer went to a dwelling-house, where the plaintiff in the present action was then sojourning with his wife, and informed him that he would have to accompany him (the officer) or procure and give bail for his appearance to answer the charge thus made against him

The plaintiff, with the officer, proposed to proceed to Bancroft & Co.’s place of business, in order to procure money to deposit as bail. The officer, objecting, said that it was too late in the evening to go there, and that he would wait for the deposit of the amount of the bail until the following Monday. Upon that day, so fixed, the plaintiff obtained the money needed, and handed it to the officer. Afterwards the former appeared twice in the Police Court, prepared to meet the accusation against him and to go to trial thereon. Upon neither of these occasions did the defendant appear; and upon the last one the charge was dismissed.

The plaintiff was never put in jail, or subjected to any real hardship or act of oppression.

The charge made, that of assault, was not at all infamous in its nature, nor does it appear seriously to have injured the plaintiff in his business affairs or in the estimation in which, as a gentleman and an honest man, [203]he had been previously held by his friends and acquaintances.

The jury by their verdict found, as they had a right to do, upon a conflict of testimony, that the defendant had no probable cause to have the plaintiff arrested as he did. They must also have found, under the trial court’s instructions, that the defendant was actuated by actual malice, and although upon the evidence we would perhaps have come to a different conclusion as to that matter, yet we do not feel warranted in altogether setting aside their verdict, as being upon that issue entirely unwarranted by the evidence.

Yet we feel constrained to say that this case is by no means on a parallel as to the features which it discloses with that of Russell v. Dennison, 45 Cal. 338-341. That was an aggravated case of willful, open, malicious oppression, which carried with it wrong, injury, and great bodily and mental suffering to the victim of a man’s vile displeasure, and the judgment was afterwards reduced. (50 Cal. 243.)