Torney

This is an action for damages for malicious prosecution. A jury returned a verdict for the plaintiff in the sum of $5,250. A motion for a new trial was denied, and the defendant has appealed from the judgment entered upon the verdict. It is contended that the verdict is unsupported, that the damages awarded were excessive and that the trial court erred in its instructions to the jury.

The defendant was the owner of an apartment house in San Francisco. In February, 1927, the plaintiff rented a furnished apartment therein for herself and her son, who was about twelve years of age. She agreed to pay therefor a monthly rental of $75 and to make additional payments for electricity, gas, and laundry service. According to her testimony she brought to the apartment wearing apparel for herself and son, with certain toys belonging to the latter. Her former' husband was an officer in the regular army, and later an army cot and blankets belonging to the government were sent to the apartment by him and previous to her departure therefrom were openly removed. She occupied the apartment until December 20, 1927, to which date she had paid the defendant the sum of $723.24. During that month she…