62 Wash. 173 | Wash. | 1911
On April 1, 1909, A. R. Warren, who was then president of the appellant, Inland Empire Telephone & Telegraph Company, subscribed and swore to a complaint
Error is assigned upon the refusal of the court to sustain the appellant’s challenge to the sufficiency of the evidence to sustain the verdict. It is said there was no proof of malice on the part of either of the defendants, and for that reason the challenge should have been sustained. In so far as the defendant Warren is concerned, we have been unable to discover anything in the record that would indicate malice on his part in the instigation of the prosecution, but the jury found in his favor, and the verdict corrects any error the court may have committed in refusing to sustain the challenge made on his behalf. But with respect to the appellant, the facts are not quite the same, Mr. Warren did not become president of the appellant until long after the happening of the transaction which gave rise to the prosecution, and his knowledge of the facts thereof was almost wholly, if not entirely, hearsay. But there were other officers of the company who counseled the prosecution who did have knowledge of facts which they did not impart to the president, and which tended to put a different phase on the acts of the respondents
It is next claimed that the verdict and judgment acquitting Warren precluded any judgment against the appellant, on the principle announced in Doremus v. Root, 23 Wash. 710, 63 Pac. 572, 54 L. R. A. 649. But here, again, we think the appellant has mistaken the evidence. Had the prosecution been instigated wholly by Warren, and were the appellant liable only because of the doctrine of respondeat superior, the analogy might be complete. But Warren did not act wholly on his own volition. The prosecution was at least sanctioned and counseled by the trustees of the company, if it was not directed by them. This evidence warranted a finding on the part of the jury against the company, although they found the president not liable.
After the discharge of the respondents by the justice of the peace, they had a transcript made of the testimony introduced at the hearing, and at the trial below the court allowed them to prove as an element of damages the amount paid for this transcript. This was error. While the respondents were entitled to show as elements of damage in the present action all necessary expenses incurred by them in making
While one of the respondents was on the witness stand his counsel read to him what purported to be the reasons given by the justice of the peace for refusing to hold the respondents for trial on the criminal charge, and asked him if the justice used that language. An objection was interposed by the appellant which the court overruled, after which the witness answered in the affirmative. This was also error. The evidence was not competent. As was said by the superior court of Georgia in Anderson v. Keller, 67 Ga. 58, passing upon a similar question:
“The question upon this trial was malice and the want of probable cause. The judgment of the magistrate discharging the plaintiff was admissible, but any reason given for that judgment should not have been admitted as evidence in this case. The plaintiff was entitled to its legal effect, but nothing more.”
To the same effect are the following cases: Dempsey v. State, 27 Tex. App. 269; Chapman v. Dodd, 10 Minn. 350; Martin v. Corscadden, 34 Mont. 308, 86 Pac. 33; Apgar v. Woolston, 43 N. J. L. 57.
Counsel for respondents argues in this court that the admission of this evidence was not prejudicial even though it be erroneous, because, he says, it related to conceded facts. But appellant does not concede in this court that there was no probable cause for the arrest of the respondents, and we are unable to find in the record that such a concession was made in the court below. True, it presented evidence tending to show its nonliability, even conceding that its prosecution was not founded on probable cause, but this was not a waiver of the contention. It had the right to set up against
For the errors indicated, the judgment is reversed and a new trial awarded.
Rudkin, Mount, and Gose, JJ., concur.