Edwards v. Container Kraft Carton & Paper Supply Co.

• Decision Date: 02 July 1958
• Citation: 161 Cal.App.2d 752,327 P.2d 622
• Court: California Court of Appeals Court of Appeals
• Parties: Hal EDWARDS, Plaintiff and Respondent, v. CONTAINER KRAFT CARTON AND PAPER SUPPLY COMPANY, Fidelity & Deposit Company of Maryland, and Pacific Employers Insurance Company, Defendants and Appellants. Civ. 22291.

Page 622

327 P.2d 622

161 Cal.App.2d 752

Hal EDWARDS, Plaintiff and Respondent, v. CONTAINER KRAFT CARTON AND PAPER SUPPLY COMPANY, Fidelity & Deposit Company of Maryland, and Pacific Employers Insurance Company, Defendants and Appellants.

Civ. 22291.

District Court of Appeal, Second District, Division 2, California.

July 2, 1958.

Hearing Denied Aug. 28, 1958.

Charles Murstein, Los Angeles, and F, Rodman Woelfle, Beverly Hills, for appellants.

Simon Taub, Beverly Hills, for respondent.

ASHBURN, Justice.

Appeal from judgment for damages for malicious prosecution of an injunction action.

Appellants challenge the sufficiency of the evidence to support the findings of want of probable cause and malice; also argue that this action was prematurely brought and that the award of damages is not supported by proof of certainty of loss to plaintiff.

Plaintiff Edwards was employed as salesman for defendant Container Kraft Carton and Paper Supply Company (hereinafter designated as Container) for about five years before he opened his own competitive business. Container is a jobber engaged in selling corrugated containers and paper supplies to the general trade. Edwards had been bringing in about $30,000 per month in business; dissatisfied about his earnings and failure of Mr. Garson, who controlled Container, to perform a promise to give him certain stock in the company, Edwards quit on June 3, 1955 and opened his own business. Garson had threatened to kill him if he did so and had made other threats.

On June 8th Container filed an injunction action against Edwards. A restraining order was sought upon the original complaint but was refused, whereupon an amended complaint and supporting affidavit (both signed by Garson) were filed on June 14th, and a temporary restraining order obtained on the 15th. Among other things it enjoined Edwards 'from soliciting the customers of plaintiff who were such prior to June 3, 1955.' On July 1, 1955, a preliminary injunction to the same effect was obtained by Container. It was dissolved by minute order of September 30, 1955, which also directed judgment for defendant Edwards; said judgment was entered on October 26, 1055. That action was filed and prosecuted upon the theory that Edwards was a director of Container and was violating a fiduciary obligation in establishing and conducting a competing business. The trial court therein found: 'That it is not true that the defendant was ever a director of the plaintiff corporation.' Also: 'That the plaintiff is engaged in the business of jobbing paper boxes and paper supplies and that the defendant, since June 3, 1955, has engaged in a similar business. The customers sold by both the plaintiff and defendant are not of a confidential list and are commonly known to the trade and are called upon by salesmen for various companies and are readily available to anyone. That the plaintiff is in open competition with other jobbers engaged in a similar business; that it is true that in the paper jobbing business there is no assurance of an order unless the saelsman can satisfy the customer that his product is cheaper, better or more saleable than that of his competitor.' This brings the case within the doctrine of Continental Car-Na-Var Corp. v. Moseley, 24 Cal.2d 104, 148 P.2d 9.

In the case now on appeal the trial judge found with respect to the injunction action that the complaint therein alleged that Edwards had been a director of Container, had submitted false and fraudulent purchase orders to it for the purchase of merchandise for certain of its customers, had assigned Container accounts receivable for factoring and had received moneys for said assignment and converted same to his own use, had ordered on behalf of Container certain merchandise and then taken personal possession of same and appropriated it to his own use, and also appropriated money and property belonging to Container to his own use and benefit. Also: 'That it is true that the defendant knew that the allegations in the Complaint filed in said action * * * were and are false and untrue and were made with the intent to injure Hal Edwards, plaintiff herein, and were made maliciously and without probable cause; that defendant Container Kraft Carton and Paper Supply Company maliciously and without probable cause wrongfully caused said action to be filed and maintained against Hal Edwards; and that defendant, Container Kraft Carton and Paper Supply Company wrongfully, maliciously and without probable cause caused an injunction to be issued therein restraining plaintiff, Hal Edwards, from soliciting any customers who were customers of Container Kraft Carton and Paper Supply Company prior to June 3, 1955, and from hypothecating or disposing of assets belonging to Container Kraft Carton and Paper Supply Company.'

An examination of the testimony and other evidence in the instant case discloses that these findings have the support of persuasive evidence. We recognize no obligation to set it forth herein, for an appellate court is not charged with the duty of reviewing the evidence in an effort to convince appellant of its sufficiency or to otherwise demonstrate the fact. See, Sonkin v. Hershon, 130 Cal.App.2d 491, 492, 279 P.2d 156; Clewett v. Clewett, 136 Cal.App.2d 913, 915, 289 P.2d 512.

The claim of prematurity of this action for malicious prosecution possesses more of substance. The complaint was filed before the time to appeal from the judgment in the injunction action had expired. But that judgment had become final before the trial of the instant action. California is now definitely committed to the doctrine that prematurity of action is merely ground for abatement, and if the ground has ceased to exist before time of trial it cannot then or thereafter prevail. This is the result of Radar v. Rogers, 49 Cal.2d 243, 317 P.2d 17. That case involved a contention that an action against an administratrix was premature because it was filed before presentation of plaintiff's claim to the said personal representative. At page 250 of 49 Cal.2d., at page 21 of 317 P.2d, the court said: 'The defense that suit was commenced before the presentation and rejection of claim 'is simply matter of abatement--a defense which is not favored, and must be made by plea, and in proper time, or it is waived.' [Citations.] Here there is no occasion to consider whether the unfavored defense was waived, for it had ceased to exist at the time defendant sought to raise it. 'A consequence of the disfavor with which such pleas are viewed is that matter in abatement must exist at the time of filing of the pleading urging it' (1 Cal.Jur.2d 29-30, § 3) and if the stated ground does not exist at the time of trial it may be disregarded. (Archibald v. Iacopi (1953), 120 Cal.App.2d 666, 669 262 P.2d 40.)' Though not mentioned in the opinion, the case of Kelley v. Upshaw, 39 Cal.2d 179, 186-187, 246 P.2d 23, upon which appellants rely, is necessarily modified pro tanto by the Radar opinion.

In Archibald v. Iacopi, 120 Cal.App.2d 666, 669, 262 P.2d 40, 41, the court said: 'Appellant's contention that with respect to the one-third payable by a promissory note twelve months after completion of the work the action was prematurely instituted on March 17, 1950, cannot be sustained. The record does not show the date on which the original complaint was filed. The defense that an action is premature is a dilatory plea not favored in law, and it is considered waived if, as is the case here, it is not specially pleaded and urged in the trial court. Kelley v. Upshaw, 39 Cal.2d 179 246 P.2d 23. Moreover at the time of the trial (November, 1951) the stated ground of abatement did not exist any more and then it may be disregarded. 1 Cal.Jur.2d 32.' See, also, Rudneck v. Southern California M. & R. Co., 184 Cal. 274, 282, 193 P. 775; Watkins v. McCartney, 70 Cal.App. 137, 140, 232 P. 982; Moore v. Fellner, 50 Cal.2d 330, 325 P.2d 857; 1 C.J.S. Abatement and Revival § 71b, p. 111; § 85, p. 126.

The facts before us argue strongly for the application of the Radar v. Rogers rule. This action for malicious prosecution was filed on November 15, 1955, 20 days after entry of judgment in the injunction action. Thereupon an appeal was taken from that judgment on November 21, 1955. Request for clerk's and reporter's transcript was filed on the same day. Defendants' answer herein was their first appearance and was filed on December 12, 1955. It alleged by way of separate defense the taking and pendency of said appeal and prayed for dismissal of the action. It did not sound in abatement and no motion to that end was made. Nor was any request made pursuant to § 597, Code of Civil Procedure, for trial of that issue in advance of the merits. No motion for new trial was made and nothing further was done toward prosecution of the appeal though notice of estimated cost of each transcript was given; no payment and no arrangement for payment for either transcript was made. Upon motion of respondent the appeal was dismissed by this court on March 27, 1956, no opposing affidavit being filed, and no appearance made in opposition to the motion.

The trial of the instant action for malicious prosecution occurred on June 25 and 26, 1956, about three months after the former judgment had become final. At the opening of the hearing plaintiff offered in evidence the judgment roll in the former action; defendants' counsel requested that the entire file go in; that was done and no objection to that evidence was made. The transcript shows no further mention of the plea of prematurity of action and defendants' counsel twice stated in objecting to certain evidence that 'that other case is res judicata.' Defendants also pursued successfully a counterclaim against Edwards. These facts would support a finding of a waiver of the plea of prematurity (Seches v. Bard, 215 Cal. 79, 81, 8 P.2d 835; Bank of America, etc., Ass'n v. Button, 23 Cal.App.2d 651, 653, 74...