Smith v. Liverpool & London & Globe Ins. Co.

Van Fleet, J. This is an action for malicious prosecution, the complaint alleging that defendants, maliciously and without probable cause, procured plaintiff to be arrested and prosecuted upon a charge of arson before a justice of the peace; and, as a second count, charging that defendants in like manner, maliciously and without probable cause, procured and induced the district attorney of Contra Costa county to bring the same charge before the grand jury of said county with a view and purpose of having plaintiff indicted for said offense.

Plaintiff had a verdict, and from the judgment entered thereon and an order denying their motion for a new trial defendants appeal.

A number of errors are assigned as grounds for reversal.

1. It is urged that the evidence is wholly insufficient to sustain the verdict in that: 1. It does not tend to show that the prosecution of the plaintiff, either before the committing magistrate or the grand jury, was by or at the instigation or procurement of defendants, or any of them; and 2. That it does not appear that the prosecution, by whomsoever instigated, was either malicious or without probable cause.

We will first consider the second ground upon which this contention rests, since the first can be more conveniently disposed of in connection with another point. It appears, without substantial conflict, in fact largely from the evidence adduced by plaintiff on his affirma[434]tive case, that the circumstances upon which the prosecution of plaintiff was based, both before the magistrate and the grand jury, were substantially these:

The estate of plaintiff’s deceased wife, of which plaintiff was the administrator, was the owner of two connecting houses in the town of Crockett, in Contra Costa county, a small village situate on the line of the railroad between Port Costa and Oakland, and about two miles distant from Port Costa, upon which there was insurance in the sum of seventeen hundred dollars in the defendant companies. On the night of Monday, May 25, 1891, between 9 and 10 o’clock, the insured property was destroyed by fire under circumstances strongly indicative that the fire was of incendiary origin. The buildings were, and had been for some time, vacant. The fire originated after dark on the inside of the houses, and, upon the arrival of persons who had observed the smoke, it was found that the outer doors were locked and the escaping smoke was laden with a strong odor of burning oil or “ dope.” The plaintiff was a carpenter, and for some little time had been working in Oakland, but his children still remained in Port Costa, and plaintiff was in the habit of coming up to see them Saturday evenings and returning to Oakland on Sunday. On this occasion he did not return Sunday, remaining, instead in Port Costa over Monday. He had been seen on the day before the fire by Mr. Cavanaugh, the next door neighbor, peering about the houses in what the latter considered a peculiar and suspicious manner; to such an extent, in fact, were the suspicions of Cavanaugh aroused that when the fire occurred, which also burned the residence of the latter, and the manner in which the fire started became known, he immediately suspected that plaintiff had set the houses on fire. About twenty minutes before the fire was discovered a witness living in Crockett, who was well acquainted with plaintiff, saw a man at the east end of the town, on the county road, walking pretty fast toward Port Costa, whom he took at the