PERRY v. WASHINGTON NAT INS CO (1936)

I dissent from that part of the decision by the majority of this court denying plaintiff the right to recover for malicious prosecution. As stated in the majority opinion, the actions grew out of an altercation at the office of the corporation defendant. The plaintiff alleged and testified that at that time and place defendants Smith and defendant George, who were in the employ of the corporation, committed a battery upon him, causing him severe physical injury, as to the extent of which he was corroborated by a physician. According to the plaintiff, he committed no assault or battery upon any one, and the injuries he suffered were wholly without justification. The jury so found and, as stated in the majority opinion, the evidence was sufficient to sustain this conclusion. Upon the malicious prosecution counts, however, the opinion holds that the plaintiff has not established grounds for recovery.

Defendants Smith and George testified that after the occurrence at the company's office they, with the other defendant, Smith, visited the office of the district attorney and gave his deputy an account of what had happened, and that, upon his advice that the plaintiff was guilty of an offense, complaints charging him with the crime of battery were sworn to and filed. The story related to the deputy was in substance that the plaintiff had committed an unjustifiable battery upon both the defendants Smith. But, according to the plaintiff, this was untrue, and, as stated, this issue was found in his favor. The defendants Smith and defendant George were present when the alleged battery was committed and knew of their own knowledge all that occurred. If plaintiff's version was true, then their statements to the deputy were necessarily and knowingly false; and such must have been the conclusion of the jury as shown by the verdict. Robinson v. McKnight, 103 Cal.App. 718, 284 P. 1056. As held in the majority opinion, if the defendant in good faith fully and fairly discloses to the prosecuting attorney the facts in his possession, and the attorney advises that a crime has been committed, and a prosecution is instituted, this is a defense to an action for malicious prosecution. Under the rule if the defendant in such an action is to be protected he must act in good faith, fully and fairly disclosing the facts within his knowledge; but he does not act in good faith where he makes a garbled and untrue statement of the facts. Wild v. Odell, 56 Cal. 136; Franzen v. Shenk, 192 Cal. 572, 221 P. 932; Starkweather v. Eddy, 210 Cal. 483, 292 P. 467; Foster v. Banks, 112 Cal. App. 622, 297 P. 106; Robinson v. McKnight, supra; 38 Cor.Jur., Malicious Prosecution, § 78, p. 432. From such mis–statements malice might be inferred, the question being one for the jury. Lacey v. Porter, 103 Cal. 597, 37 P. 635; Seabridge v. McAdam, 108 Cal. 345, 41 P. 409; Burke v. Watts, 188 Cal. 118, 204 P. 578; Franzen v. Shenk, supra; Torney v. Petersen, 109 Cal.App. 560, 293 P. 653. These issues were also submitted to and passed upon by the jury; and their verdict thereon, being for the plaintiff upon conflicting evidence is conclusive. Green v. Stewart, 106 Cal.App. 518, 289 P. 940.

In this connection it has been suggested that defendants were also advised by a policeman, who was called after the altercation that they should file a criminal complaint against the plaintiff, and that this advice in some manner justified their action; but no case has been cited where the advice of a police officer has been held to be a justification.

It seems plain that if the plaintiff can recover upon the assault and battery count, he has also established his causes of action for malicious prosecution; and if not, that no ground for a recovery upon any count of the complaint has been shown. The right to recover, however, does not necessarily mean that he is entitled to all the jury awarded him.

After plaintiff's arrest he was detained for about an hour; and the facts are almost identical with those in Shaffer v. Arnaelsteen, 54 Cal.App. 719, 202 P. 946, where it was held that any award over $2,000 for a similar detention would be excessive. This sum, under the circumstances in the present case, would seem to be a fair award. Though a verdict appears excessive or should be reduced, it does not follow that the jury was influenced by prejudice or passion, Swett v. Gray, 141 Cal. 63, 74 P. 439; Turner v. Whittel, 2 Cal.App.(2d) 585, 38 P.(2d) 835; nor does the evidence here fairly support that conclusion.

I am of the opinion that that part of the judgment entered on the verdicts returned on the third and fourth counts, namely, for malicious prosecution, and which aggregate $4,000, should be reversed and the cause remanded for a new trial on those counts unless the plaintiff shall remit therefrom the sum of $2,000; but that if such remission be made, then that part of the judgment to the extent of $2,000 should stand affirmed.