Carr v. Zellerbach Paper Co.

• Decision Date: 12 September 1932
• Docket Number: 23699.
• Citation: 14 P.2d 35,169 Wash. 493
• Parties: CARR et ux. v. ZELLERBACH PAPER CO.
• Court: Washington Supreme Court

14 P.2d 35

169 Wash. 493

CARR et ux. v. ZELLERBACH PAPER CO.

No. 23699.

Supreme Court of Washington

September 12, 1932

Department 2.

Appeal from Superior Court, Spokane County; Fred H. Witt, Judge.

Action for malicious prosecution by Howard Carr and wife against the Zellerbach Paper Company and another. From order granting plaintiffs' motion for new trial after direction of verdict for defendants, defendants appeal.

Reversed and remanded with instructions.

Hamblen & Gilbert and J. P. Dillard, all of Spokane, for appellants.

W. B Mitchell, of Spokane, for respondents.

BEALS J.

Defendant D. C. Hempstead was, during the years 1929, 1930, the general office and credit manager of the Spokane branch of Zellerbach Paper Company, a corporation. October 23 (or 24), 1929, the corporation (which will herein be referred to as Zellerbach) sold to plaintiff Marie Carr a bill of goods of the value of $26.74, cash on delivery. Whether the goods were delivered to Mrs. Carr on October 25th or 26th is in dispute, but it is admitted that at the time of delivery she handed to the carrier her check, dated October 26, 1929, drawn on Hillyard State Bank to the order of Zellerbach in the sum of $26.74. This check was by the payee deposited in its bank, and, on presentation to the drawee, was dishonored for want of sufficient funds in Marie Carr's account to pay the same. On Mrs. Carr's suggestion, the check was several times put through Zellerbach's bank for collection, and was on each presentation dishonored by the drawee. November 8, 1929 the old check having been completely covered with stamped indorsements, Mrs. Carr gave to Zellerbach a new check in the same amount as the old. On presentation this check was also dishonored by the drawee, that bank reporting when the check was last presented that the account had been closed.

January 17, 1930, defendant D. C. Hempstead, Before a justice of the peace for Spokane precinct, swore to a complaint against Marie Carr, charging her with grant larceny in that Mrs. Carr by the check of November 8th fraudulently procured from Zellerbach merchandise in value equal to the amount of the check. Mrs. Carr was arrested pursuant to this complaint ans confined in jail for twenty-six days. February 19, 1930, the complaint Before the justice was dismissed, and, during the spring of 1931, Mrs. Carr and her husband brought this action against Mr. Hempstead and Zellerbach, claiming general damages in the sum of $50,000 for malicious prosecution, together with $25 for special damages. The action came on regularly for trial Before the court sitting with a jury, and, at the close of plaintiffs' case, the trial court sustained defendants' motion for a judgment in their favor as matter of law, and dismissed the action. Later the court granted plaintiffs' motion for a new trial, and from the order granting a new trial defendants appeal.

Respondents have moved to strike the statement of facts upon the ground that the same was filed too late. The order appealed from was filed November 10, 1931, the statement of facts having been filed in the office of the clerk of the superior court February 9, 1932, or ninety-one days after the entry of the order appealed from. It appears, however, that the order granting the new trial was signed in the absence of appellants' counsel, and that the statement of facts was filed within ninety days from the time they received notice of the entry of the order. The order bears the 'O. K. as to form' of appellants' counsel and their undated acknowledgment of the receipt of a copy, but it appears from a showing made a part of the statement of facts by the certificate of the trial court that these indorsements were written upon the order Before the same had been presented to or signed by the court. The record contains an affidavit by respondents' counsel, but he does not contend that appellants' counsel was present in court at the time the order was signed. The order having been signed in the absence of appellants' counsel, the time within which appellants could file their proposed statement of facts would not commence to run until formal notice to them of the entry of the order. The motion to strike the statement of facts is denied.

Respondent Marie Carr testified that the merchandise which she ordered from Zellerbach was delivered to her Friday, October 25th, and that she explained to the delivery clerk that the goods were delivered sooner than she had ordered them delivered, and that, if she accepted them at that time, she would have to deliver in payment thereof a postdated check, to which Zellerbach's agent agreed, and that thereupon she drew and delivered to this agent the check dated October 26th.

Appellant D. C. Hempstead was by respondents called to the stand as an adverse witness, and testified that sometime prior to the delivery of the goods to Mrs. Carr, Honorable C. W. Greenough, prosecuting attorney for Spokane county, had made an address Before Spokane Association of Credit Men at a meeting of the association which Mr. Hempstead had attended, in the course of which address Mr. Greenough had suggested that cases involving the issuance of NSF checks be referred to his office; that, because of this invitation on the part of Mr. Greenough, Mr. Hempstead, with Mrs. Carr's checks, had called at Mr. Greenough's office and had there been referred to one of Mr. Greenough's deputies, to whom Mr. Hempstead had stated the facts in connection with the issuance and dishonor of Mrs. Carr's checks; that, at the request of the deputy prosecuting attorney, Mr. Hempstead had turned over to him the checks issued by Mrs. Carr; and that, after a subsequent conversation between the two at the prosecutor's office, the prosecutor prepared the complaint which Mr. Hempstead signed Before the justice of the peace; that Mr. Hempstead assumed that the deputy prosecutor had taken appropriate action in the premises, and relied upon him in all respects.

Appellants contend that the trial court correctly granted their motion for judgment in their favor at the close of respondents' case, and erred in granting respondents' motion for...