In this аction, for malicious prosecution, which was tried with a jury, plaintiff obtained a judg *780 ment in the sum of $5,000 against Maurice Lee, Myrtle I. George, Raleigh George and Richard F. George. The motion of Richard F. George for a new trial was granted and- the motion of the other defendants for a new trial ''was denied upon the remittance by plaintiff of the sum of $2,000, which the court had required as a condition of the denial of the motion. Defendants Mjrrtle I. George and Raleigh George have appealed from the judgment. Defendant Lee has not appealed.
The litigation arose from the arrest on February 15, 1940, of plaintiff and his incarceration for nine days, under a warrant issued by Frank K. Carrell, a justice of the peace, on charges of the grand theft of an automobile аnd of the violation of section 504a of the Penal Code, which provides that one is guilty of embezzlement who fraudulently removes or conceals chattels leased to him by an instrument in writing under a contract to purchase. When -the action was first called for trial defendants moved tfie court for judgment on the pleadings, claiming that it affirmatively appeared oil the face оf the complaint that there was probable cause for the arrest of plaintiff. This motion was granted because the trial court was of the opinion that under the decision of
Wilson
v.
Troy,
The appealing defendants now contend that the evidence is' insufficient to sustain the implied finding of the jury that defendant Lee was acting in the course of his employment *781 as their agent when he swore to the complaint upon which the warrant of arrest was issued. The evidence on the subject was conflicting and under well established principles it must be viewed by us in the light most favorable to plaintiff, indulging such reasonable inferences in plaintiff’s favor as the jury could draw thеrefrom. Defendant Richard P. George, an attorney at law, was the owner of a lot which was leased by defendant Raleigh George, his son, a used car dealer. Defendant Lee was the agent of Raleigh George in the business of buying and selling cars. He was the agent of defendant Myrtle I. George, Raleigh’s mother, in signing sales contracts and collecting payments on the contracts. Lee sold to plaintiff on June 29, 1939, under a conditional sale contract a Plymouth car for the cash purchase price of $145 and took an Essex car in trade for which a credit was to be allowed of $15. A sale contract was prepared showing payments in the aggregate sum of $186.80. Appellants’ ledger sheet showed the contract price to be $171.80 and the installment payments were to be in monthly sums of $6.31. The contract was made in the name of defendant Lee but was assigned by him to defendant Myrtle George. Lee testified that he did not own the car that was purchased by plaintiff but that it was owned by Raleigh George. In answer to the question why he signed the sale contract in his own name he answered: “That was the usual way we did those things as agent for Mr. Raleigh George; I usually signed the pink slip and he signed all the other things. I usually signed M. M. Lee as their agent, my contract going to Mrs. George.” Myrtle George received payments and gave receipts therefor in her own name. She testified that Lee was the collector. The contract provided that in case of a default in any installment payment the matter of collection could be referred to аny person for collection, the purchaser to pay a reasonable collection charge. Lee testified that he was to receive $2.50 for each trip he made to collect from plaintiff. When at a later period he attempted to repossess the car Raleigh George said to plaintiff’s wife, “this happens to be my car. ’ ’
Plaintiff was delinquent on two monthly instаllments on October 15, 1939, and soon thereafter about midnight Lee pounded on the door of his residence and said to plaintiff; “You are lucky Mr. George doesn’t have you arrested.” A few days later plaintiff made a payment and signed a new *782 agreement. At about 9 p. m. on November 15th, Lee called at plaintiff’s residence and talked to his thirteen-year-old daughter, who told him that her pаrents were in G-lendale visiting a sick amit. Although the girl was crying at the time, Lee said, “you are nothing but a liar like your Dad.” He also said, “Well, I am going to wait for your father. If he isn’t here in so long I am going down and swear out a warrant for his arrest because he stole my car. ’ ’ On her return from Glendale Mrs. Miller called at the residence of Mr. and Mrs. George and paid them $6.00, which was all the money she had. This sum was at first rеfused because there should be an additional sum of $2.50 for Lee’s trip, but the payment was accepted with the statement that the extra thirty-one cents and the $2.50 for Lee’s collection trip would be added at the end of the contract. In his wife’s presence Richard F. George said to Mrs. Miller, “I have been very lenient with your husband not having him arrested before.”
Plaintiff went to the residence of the Georges to make a payment on December 12, and while he was there Mrs. Miller drove to a nearby market to get groceries and take the children to a rest room. While she was parked at the market Raleigh George and Lee came up in an automobile. Lee said, “I am taking the car” and Mrs. Miller replied, “I don’t believe I have to give it to you.” Lee then said, “I am going to Justice Carr ell and will have you both locked up for stealing the car. ’ ’ Raleigh George then called a police officer, who refused to interfere. George then got in the car and shoved Mrs. Miller out of the driver’s seat and drove to Mrs. George’s residence, saying, “This happens to be my car.” Shortly thereafter and on the same date plaintiff gave Mrs. George $12.62. He wаs given a receipt in full to January 1, 1940, and was allowed to retain possession of the car. This was the date, December 12, 1939, on which it was later charged that plaintiff was guilty of theft and fraudulent concealment of the ear.
Plaintiff lost his job with the Wilmington Boat Works and the ■ family broke up housekeeping. Plaintiff went to live with a brother-in-law, and his wife and the children went to live with her mother. Plaintiff informed defеndant of his change of address. On the agreement executed on December 12, plaintiff gave his address as 342% West 56th Street. This was the correct address where he then kept the ear. On December 30th he notified defendants he had moved with *783 the ear to 1015 East 76th Place, where from that time to the date of his arrest he lived with his family. Plaintiff told defendants he conld not make the payments but he was not asked to return the car. In February, before plaintiff was arrested, Mrs. Miller called defendants and asked them to get the car. They did so. On February 15, 1940, the criminal complaint was sworn to before the justice of the peace, in which it was stated that the offense had been committed by plaintiff on December 12, 1939.
At the preliminary hearing on the criminal complaint the charge of grand thеft was dismissed for insufficiency of the evidence, but plaintiff was bound over to the superior court on the other count. The matter was submitted to the superior court on the transcript of the evidence taken at the preliminary hearing and the court dismissed the action for insufficiency of the evidence.
The fact that the sale contract assigned by Lee to Mrs. George contаined the words “with recourse,” does not prevent a finding by the jury that Lee was in fact the agent of the two appealing defendants. An agency may be proved by circumstantial evidence.
(MacDonnell
v.
California Lands, Inc.,
In
Diggs
v.
Arnold Bros., Inc.,
The appellants mаy not escape liability under the claim that Lee made a full and fair disclosure of all of the facts to the justice of the peace before the warrant was issued. Whether Lee did in fact make such disclosure was an issue to be determined by the jury. The jury’s implied finding on this point adverse to appellants is sustained by the evidence, including the testimony of the justice of the peace, from which the jury could have reasonably concluded that Lee falsely represented to the justice that he was the owner of the automobile; that he falsely stated to the justice that plaintiff had concealed the car ■ and that he failed to disclose to the justice that on December 12, 1939, plaintiff was not in default in his payments.
There is no merit in the contention of аppellants that the jurisdiction of the superior court had terminated before the commencement of the trial which resulted in the verdict for plaintiff. This point was decided adversely to the contention of appellants on the former appeal. In their brief appellants state: “Appellants are aware of the fact that these same contentions were made by them and the other defendants in the instant action in the briefs filed in
Miller
v.
Lee,
*785
The court did not err in its rulings on the admission of evidence. Appellants complain particularly of the ruling permitting the introduction in evidence of the amendments to the answer to the first amended complaint, claiming that these amendments were superseded by later pleadings. Appellants testified at the trial that they had had nothing to do with the issuance of thе criminal complaint and knew nothing about it. In their verified amendments to the answer to the first amended complaint appellants admitted that they had consulted a lawyer before Lee swore to the criminal complaint, giving him the facts in detail in such manner as to indicate their purpose to have plaintiff arrested. These amendments were clearly admissible not only as containing admissions by appellants but also for the purpose of impeaching their testimony. Neither did the court err in receiving in evidence the ledger sheet furnished to the justice of the peace by appellants. The ledger sheet provided corroborating evidence as to the agency of Lee and the condition of the account which was kept of plaintiff’s transactions. The ledger sheet, was also admissible to show whether plaintiff had been given credit for the Essex car which he turned in, no credit for this car being shown on the ledger sheet. Lee testified that plaintiff had not been given credit for the $15 allowance on the Essex ear. Nor did the court err in receiving evidence showing the financial inability of plaintiff to make his payments. This evidencе had a bearing on the intent of plaintiff and it showed the necessity for plaintiff’s change of residence and of the location of the car, concerning which appellants were notified. The court did not err in receiving evidence that a report was circulated in the neighborhood where plaintiff lived that plaintiff was a jailbird and had stolen a car. This report was brought home to plaintiff. In an action for malicious prosecution damages may be recovered for injuries to feelings as well as for bodily harm.
(Shatto
v.
Crocker,
Appellants assert that plaintiff’s counsel was guilty of misconduct in asking defendant Lee if he had not at a time shortly before the arrest of plaintiff caused the arrest *786 of another man to whom a car had been sold. Plaintiff asserts that this question was asked in good faith and that the court erred in sustaining an objection to it. However, the court promptly instructed the jury that they must not “consider the information cоnveyed in that question at all.” We are satisfied that defendants were not prejudiced by the incident.
Appellants contend that the court in its instructions erroneously left to the determination of the jury the question whether there was probable cause for the arrest of plaintiff. They particularly complain of a lengthy instruction in which the court specifically mentioned the importаnt facts which it was plaintiff’s duty to establish in order to obtain a verdict and included in the instruction the statement, “and if you further find and believe from the evidence that the instigation, institution and prosecution of said action on the part of defendants was malicious and without probable cause, then it will be your duty to find the issues in favor of the plaintiff and against the defendants.” But the court also instructed the jury that the verdict must be for the defendants if defendant Lee informed the justice of the peace that plaintiff had given defendants the address on 342% West 56th Street as his address on December 12, 1939, and that defendants had made diligent efforts to find the automobile sold to plaintiff after the giving of said address and could not find the automobile or plaintiff, and if they further found that plaintiff did not live at 342% West 56th Street on December 12, 1939, and that he never informed defendants of his true address. The court further instructed the jury that plaintiff could not recover if defendant Lee honestly believed that defendant had committed a crime and that he sought the legal advice of the justice of the peace and in good faith fully and fairly disclosed to the justice of the peace all of the information hе possessed and was then advised that a crime had been committed.
It is unquestionably the rule that the court must determine as a matter of law what does and what does not constitute probable cause, but it is the function of the jury to determine on conflicting evidence whether or not those facts exist which must be established to constitute want of probable cause. The apprоved method is for the court to instruct the jury that if they find and determine certain questions of fact properly submitted to them to be true or untrue their verdict must be for the plaintiff, or for the defendant, as the case
*787
may be. In
Scrivani
v.
Dondaro,
The instruction now before us, like the instruction mentioned in the Scrivani case, is not “perfect in fоrm.” But it can be properly stated that here also the instruction is not “seriously objectionable.” The jury was told substantially that if the evidence disclosed certain facts, naming them, plaintiff could not recover. We are satisfied that the jury were not misled and that they were in effect told that they were to be the arbiters of questions of fact. There has been no miscarriage of justice.
The judgment is affirmed.
Moore, P. J., and McComb, J., concurred.
A petition for a rehearing was denied December 8, 1944, and appellants’ petition for a hearing by the Supreme Court was denied January 11, 1945. Shenk, J., voted for a hearing.