Smith v. Liverpool & London & Globe Ins. Co.

This is an action for malicious prosecution, the complaint alleging that defendants, maliciously and without probable cause, procured plaintiff to be arrested and prosecuted upon a charge of arson before a justice of the peace; and, as a second count, charging that defendants in like manner, maliciously and without probable cause, procured and induced the district attorney of Contra Costa county to bring the same charge before the grand jury of said county with a view and purpose of having plaintiff indicted for said offense.

Plaintiff had a verdict, and from the judgment entered thereon and an order denying their motion for a new trial defendants appeal.

A number of errors are assigned as grounds for reversal.

1. It is urged that the evidence is wholly insufficient to sustain the verdict in that: 1. It does not tend to show that the prosecution of the plaintiff, either before the committing magistrate or the grand jury, was by or at the instigation or procurement of defendants, or any of them; and 2. That it does not appear that the prosecution, by whomsoever instigated, was either malicious or without probable cause.

We will first consider the second ground upon which this…