Bell Lumber Co. v. Graham
| Decision Date | 01 October 1923 |
| Docket Number | 10576. |
| Citation | 219 P. 777,74 Colo. 149 |
| Parties | BELL LUMBER CO. v. GRAHAM. |
| Court | Colorado Supreme Court |
Rehearing Denied Nov. 5, 1923.
Department 2.
Error to District Court, Routt County; Gilbert A. Walker, Judge.
Action by G. L. Graham against the Bell Lumber Company. Judgment for plaintiff, and defendant brings error.
Reversed and remanded, with directions.
Gooding & Monson and W. C. Reilly, all of Steamboat Springs, for plaintiff in error.
J. M Childress, of Oak Creek, for defendant in error.
Defendant in error had judgment against the plaintiff in error in an action for malicious prosecution. The cause is before us on error. There are several questions raised, only two of which are necessary to be considered, that is, the refusal of the court to give a requested instruction, and the giving of instruction 14.
The requested instruction was to the effect that, if the jury found that the prosecution of the case against the plaintiff in the justice court was terminated by agreement, or settlement of the parties, voluntarily and understandingly made, then the verdict should be for the defendant. This instruction was refused, and no instruction covering the point was given. The instruction should have been given.
The plaintiff in this action was charged with obtaining goods under false pretenses. Before the trial was begun in the justice court, after consultation and agreement with the prosecution, plaintiff paid the bill for the goods which he is charged with having improperly obtained, and the justice was requested to dismiss the case, and did so.
It is well settled that a compromise voluntarily made, or a settlement by the consent of the accused, defeats a recovery in an action for malicious prosecution based upon a criminal proceeding. 18 R.C.L. p. 25, and cases cited. See also, Welch v. Cheek, 125 N.C. 353, 34 S.E. 531; Lamprey v Hood, 73 N.H. 384, 62 A. 380; McCormick v. Sisson, 7 Cow. (N.Y.) 716; Langford v. Railroad Co., 144 Mass. 431, 11 N.E. 697; Hurd v. Shaw, 20 Ill. 354.
Defendant in error contends that the authorities require that such settlement be made by procurement of the plaintiff, that is, by the accused in the criminal proceeding. Such is not the case. The authorities hold that, if the accused procured the settlement, or consented to it, no determination of the charge against him can be held to have resulted from the dismissal of the charge. That the settlement was made voluntarily, and with the full approval of the accused, appears conclusively from the evidence.
The error in refusing this instruction was emphasized by the giving of instruction 14, in which the jury were instructed that malice and want...
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Roberts v. City of Fairbanks
...out of which this litigation arises, was settled, a verdict was properly directed in defendants' favor."); Bell Lumber Co. v. Graham , 74 Colo. 149, 219 P. 777, 778 (1923) ("It is well settled that a compromise voluntarily made, or a settlement by the consent of the accused, defeats a recov......
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Hewitt v. Rice
...a settlement does not constitute favorable termination for purposes of a malicious prosecution action. See, e.g., Bell Lumber Co. v. Graham, 74 Colo. 149, 219 P. 777 (1923); Webb v. Youmans, 248 Cal.App.2d 851, 853, 57 Cal.Rptr. 11, 13 (1967); 30 A.L.R.4th 572 § 2(a), 17. The Restatement (S......
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Green v. Warnock
... ... 258; First State Bank v ... Denton, 82 Okl. 137, 198 P. 874, 875; Bell Lumber ... Co. v. Graham, 74 Colo. 149, 219 P. 777; Langford v ... Boston & A. Railway Co., 144 ... ...
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Schenck v. Minolta Office Systems, Inc.
...matter resulting from negotiation, compromise, settlement, or agreement is not considered a favorable termination. Bell Lumber Co. v. Graham, 74 Colo. 149, 219 P. 777 (1923); Land v. Hill, Here, plaintiff and defendant did enter into a settlement agreement with regard to civil claims. Howev......