Murphy v. Booth

• Decision Date: 04 August 1909
• Docket Number: 1990
• Citation: 36 Utah 285,103 P. 768
• Court: Utah Supreme Court
• Parties: MURPHY v. BOOTH

103 P. 768

36 Utah 285

MURPHY v. BOOTH

No. 1990

Supreme Court of Utah

August 4, 1909

Appeal from the District Court, Third District; Hon. T. J. Lewis Judge.

Action by Julia Murphy against Robert L. Booth.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Edwards Smith & Price for appellants.

Stewart & Stewart and E. A. Walton for respondent.

McCARTY J. STRAUP, C. J., and FRICK, J., concur.

OPINION

McCARTY, J.

On October 10, 1906, Julia Murphy, plaintiff, commenced this action in the district court of Salt Lake County against Robert L. Booth, defendant, for malicious prosecution. It is alleged in the complaint that:

"The defendant, falsely, wickedly and maliciously contriving and intending to injure the plaintiff in her good name and reputation, did, on the 1st day of May, 1905, go before the justice of the peace of Bingham Junction precinct, County of Salt Lake, State of Utah, and falsely and maliciously, and without any reasonable or probable cause, charge plaintiff with the crime of obtaining money under false pretenses."

Then follows a recital of the charging part of the complaint upon which the warrant for her arrest was issued, also the facts respecting her arrest and prosecution for the crime charged. It is further alleged in the complaint that plaintiff had thereby "been greatly injured in her credit and reputation, and brought into public scandal, infamy, and disgrace, and has suffered great anxiety of mind and pain of body, to her damage in the sum of ten thousand dollars. Defendant answered and denied generally the allegations of the complaint. A trial was had to a jury, who found the issues in favor of plaintiff and assessed her actual damages at $ 1187.50. They also awarded her exemplary damages in the sum of two thousand dollars. Defendant filed a motion for a new trial, and when the motion was heard the court announced that, in case plaintiff should consent that judgment for exemplary damages be reduced to five hundred dollars the motion for a new trial would be overruled; otherwise a new trial would be granted. Plaintiff consented to the reduction, and the judgment for $ 1687.50, as thus modified, was allowed to stand. To reverse the judgment, defendant has appealed.

The material facts in this case. briefly stated, are about as follows:

In 1903 the Booth Mercantile Company, a corporation, was engaged in the carrying on of a general merchandise business at Bingham Junction, Utah, and Robert L. Booth, defendant herein, was the secretary and general business manager of the corporation. This company was the owner of a certain building at Bingham Junction, the lower part, or ground floor, of which was occupied and used by it for the carrying on of its business. The balance of the building was leased to one Eugene R. Wheelan as a hotel. Wheelan claimed to be the owner of the furniture with which the hotel was furnished. The facts and circumstances tend to show, and there is some direct evidence to that effect, that the Booth Mercantile Company had some interest in or claim against the furniture. We shall, however, for the purposes of this case, assume that Wheelan was the absolute owner of the furniture and kitchen utensils used in the hotel as the question of whether Wheelan was the sole owner or owned it jointly with the Booth Mercantile Company is, as we view the case, immaterial. Mrs. Murphy, plaintiff, came from Pocatello, Idaho, to Bingham Junction, in April, 1903. Her husband, Timothy Murphy, was a section foreman on the Oregon Short Line Railroad. Prior to Mrs. Murphy's marriage to Mr. Murphy, she had been married to one Michael Griffin, who died in 1895 and left surviving him seven children by plaintiff, all of whom were minors. The property of which the decedent died possessed consisted of real estate in Pocatello, Idaho, of the probable value of fifteen hundred dollars, all of which was, by the probate court, assigned to the widow, now Mrs. Murphy, and the seven minor children for their support and maintenance. When Mrs. Murphy came to Utah, in April, 1903, she had no property of her own. About May 10, 1903, she commenced negotiations with Wheelan for the purchase of the hotel business. Wheelan offered to sell for fifteen hundred dollars, which offer was, on or about May 24th, accepted by Mrs. Murphy. In the meantime she had had several conferences with R. L. Booth, defendant, in regard to the amount of rent she would be required to pay the Booth Mercantile Company for the part of the building occupied and used as a hotel. Booth informed her that Wheelan had been paying one hundred and twenty-five dollars per month, but that she could have the use of the hotel for one hundred and fifteen dollars per month, and if, during any month the business should prove unprofitable, the rent for such month would be reduced to one hundred dollars.

Mrs. Murphy testified that Booth told her she could occupy the building as a hotel as long as she desired. Booth, however, in his testimony, denied that he made any such statement, or that he leased the hotel to her for any specified length of time. Booth, however, promised that he would protect her in her collections for board and rooms, that the men who were boarding and rooming at the hotel were working at the smelters, and that he had arranged with the smelter companies to have the checks paid to the working men through the Booth Mercantile Company store, which would enable Mrs. Murphy to collect her board bills and rents. In closing the deal with Wheelan, Mrs. Murphy let him have some furniture that she had at her home in Bingham Junction, valued at five hundred dollars, and agreed to pay him the balance, one thousand dollars in cash. She arranged with the Booth Mercantile Company, through Booth, to pay Wheelan this one thousand dollars, and gave the company her promissory note for the amount secured by a chattel mortgage on the furniture and fixtures in the hotel. She also gave the company a mortgage on the piece of real estate in Pocatello hereinbefore mentioned. Booth testified that she represented to him that she was the absolute owner of the Idaho property, and that neither her husband nor her children had any interest in it. Mrs. Murphy, on the other hand, testified that before the mortgage was executed she stated to Booth that her children owned an interest in the property, and that he was fully advised as to the condition of the title. Soon after the mortgage was signed, Booth telephoned to Church & White at Pocatello to ascertain the value of the mortgaged property situated at that place, and was advised that it was worth fifteen hundred dollars. The two mortgages, which bore date of May 29, 1903, were duly recorded, and Wheelan received from the Booth Mercantile Company a check for four hundred and thirty dollars, being the difference between the one thousand dollars he was to receive from Mrs. Murphy and the amount that he was owing the company for merchandise purchased by him in his business during the previous month.

On or about the date the mortgages were executed Mrs. Murphy took possession of the hotel, which consisted of a kitchen and...