Howell v. Benton

• Decision Date: 31 July 1952
• Docket Number: No. 31892,31892
• Citation: 40 Wn.2d 871,246 P.2d 823
• Court: Washington Supreme Court
• Parties: HOWELL, v. BENTON et al.

Page 871

40 Wn.2d 871

246 P.2d 823

HOWELL, v. BENTON et al.

No. 31892.

Supreme Court of Washington, Department 2.

July 31, 1952.

G. Bradley Dalton, Seattle, for appellant.

Lundin & Barto, Seattle, for respondents.

FINLEY, Justice.

A Mr. Benton, while unmarried, met a Mrs. Howell, a divorce. Both were residents of the Malloy Manor, an apartment house in the University District of Seattle. For some time they saw each other frequently, often having dinner together. Eventually, Mr. Benton ceased paying attentions to Mrs. Howell and moved from the Malloy Manor to the Collegiana Apartments, managed by Mrs. Ellerby, and located about a block away from his former residence. Thereafter, Mrs. Howell began to seek after Mr. Benton, both in the hallways of his apartment building and on the streets, following him, watching him, and writing notes to him. He objected to her actions but the protests on his part were unavailing; she continued the chase. He complained to the prosecuting attorney's office. Mrs. Ellerby, the landlady at the Collegiana Apartments, also complained. Two justice court complaints and an insanity charge were filed against Mrs. Howell. Based upon the part allegedly played by Mr. Benton and Mrs. Ellerby in the aforementioned proceedings, Mrs. Howell instituted this lawsuit to recover damages against them for malicious prosecution.

There are three separate causes of action. The first is against both Mr. Benton and Mrs. Ellerby, and is based on a complaint, signed by Mrs. Ellerby and filed by the prosecutor accusing Mrs. Howell of being a lewd, dissolute or disorderly person. This complaint was dismissed in the justice court. A finding of probable cause was made by the justice of the peace, who presided. The second cause of action is against the two above defendants and is based on a complaint charging vagrancy, signed by Mr. Benton. Under this complaint, Mrs. Howell was convicted in the justice court. Her appeal resulted in a hung jury. After the jury disagreed, appellant signed a release, agreeing not to bring a civil suit against Mr. Benton. The action was dismissed and there was no further prosecution. The third cause of action is again against both defendants. It grew out of the swearing out of the insanity complaint against Mrs. Howell. Neither of the defendants signed that particular complaint. It was just filed by the prosecutor's office. In proceedings thereunder, Mrs. Howell was declared sane.

At the close of the evidence in the instant case, the trial judge dismissed Benton from the first cause of action, and dismissed Mrs. Ellerby from the second and third. Obviously, this left a lawsuit against Mrs. Ellerby on the first cause of action, and against Mr. Benton on the second and third. The jury found for Mrs. Ellerby on the first, for Benton on the second, and for Mrs. Howell on the third cause of action. Mrs. Howell's motions for judgment notwithstanding the verdict on the first two causes of action were denied. Benton was granted his motion for judgment notwithstanding the verdict on the third cause of action. Mrs. Howell has appealed.

Error is assigned as follows: (1) In dismissing Benton from cause one, and instructing the jury to that effect; (2) in dismissing Mrs. Ellerby from causes two and three, and so instructing the jury; (3) in denying appellant's motions for judgment nothwithstanding the verdict or a new trial on the first and second causes; (4) in giving Instruction No. 23, presenting to the jury the question of the validity of the release executed by Mrs. Howell, as aforementioned; and (5) in granting Benton's motion for judgment notwithstanding the verdict on the third cause of action.

In the first cause of action it was charged that defendants, Mr. Benton and Mrs. Ellerby, did 'jointly conspire' against Mrs. Howell, maliciously intending to injure her by accusing her of being a lewd, dissolute and disorderly person. The complaint relative to the first cause of action was signed or sworn out by Mrs. Ellerby. There was no evidence or reasonable inference therefrom that there was any conspiracy between the two defendants. Hence, defendant Benton was properly dismissed from the first cause of action. For the same reason, defendant Ellerby was properly dismissed from causes two and three.

There was substantial evidence to support the verdict of the jury in favor of Mrs. Ellerby on the first, and Benton on the second, causes of action. Therefore, the court was correct in denying appellant Howell's motions for judgment notwithstanding the verdict of those causes.

After the jury failed to agree as to a verdict in the second vagrancy charge brought against Mrs. Howell, she signed a release as follows:

'Release

'I, Ethelyn Howell, hereby agree and promise not to bring a civil suit against Dwight Benton. This promise is made in consideration of Mr. Benton's request to the Prosecuting Attorney to dismiss the case of State of Wash vs Ethelyn Howell, Sup.Ct. § 25025. This release covers all causes of actions for all time to this date which I may have against Dwight Benton.

'Dated this March 24th 1949

'Ethelyn M. Howell

'Witness Leo J. Peden.'

The case was subsequently dismissed.

This release was submitted to the jury on the following instruction:

'No. 23

'The plaintiff alleges in her amended reply that the release signed by her was obtained by duress and that there was no consideration therefor. In this connection, I instruct you that the burden is upon the plaintiff to sustain the charge of duress by evidence which is clear and convincing.

'Likewise, the burden is upon the plaintiff to prove lack of consideration by a preponderance of the evidence. In this connection, I instruct you that any promise made by the defendant Benton to request the prosecuting attorney to dismiss the case of State of Washington vs. Ethelyn Howell would be adequate consideration for the release; and in this connection I further instruct you that such request could be made by the defendant Benton in person or his attorney.

'If you should find that said release was obtained through duress, then there would be no release on the part of the plaintiff in this case.

'If you should find that the plaintiff Howell executed a valid release, without duress and for adequate consideration, to defendant Benton, then your verdict should be for defendant Benton on the 2nd vagrancy cause of action.'...