Herlihy

Defendant appeals from a judgment rendered against her for damages in an action based upon her alleged malicious prosecution of plaintiff in a criminal action in which plaintiff was charged with “the crime of disturbing the peace,” in that she did “willfully, unlawfully and maliciously disturb the peace and quiet of the complainant (this defendant) by loud and abusive language, quarreling and traducing to quarrel, and other offensive conduct. ’ ’

The first point presented by appellant is that the trial court erred in giving to the jury the following instruction: instruct you, as a matter of law, that the defendant did not have, under such circumstances, probable cause for the filing of such complaint and your verdict must be for the plaintiff. ’ ’

Appellant first complains of that part of the instruction by which in effect the jury was told that if no probable cause existed for the prosecution of the criminal action against plaintiff, a verdict should be rendered in her favor. In order to prevail in actions for damages based upon malicious prosecution, the law appears well settled that it is incumbent upon the plaintiff to allege and prove that the action which it is claimed was…