concurs in judgment:
I willingly concur with the majority opinion that the-court was in error in submitting the question of punitive damages to the jury. This upon the theory that there was no evi*48dence supporting express malice; nothing more than legal malice as would arise on proof of no probable cause.
In my opinion we should go- farther and determine that considering the evidence in its strongest light in favor of plaintiff, probable cause was shown and we should enter final judgment. A careful reading of plaintiff’s- testimony as to what she said to the cashier and special officer of The Lazarus Company tends to throw further suspicion on her attempt to cash a check when she had no funds in the bank. Her statement that her divorced husband had told her that she might issue checks against his account, would in no sense authorize her to draw a check against her account when she did not and never did have any money in the bank. It seems to be conceded that The Lazarus Company made one call at the bank upon which the check was drawn at Pomeroy, Ohio, and thereby ascertained .that Mrs. Thomas had no account at the bank, although plaintiff herself denies any knowledge of this call. ,
It is inconceivable that the officers of the bank would simply answer, “No account”, if any arrangements had been made through which her checks would be cashed.
Probable cause is a mixed question of law and fact. 25 O. Jur., Page 948 (Malicious Prosecution), Section 74, and same section under Cumulative Supplement. Both in the text and the supplement, several Ohio cases are cited to the effect that where the factual question is not in dispute it becomes a question of law as to whether or not there was probable cause for the institution of the criminal action. In the annotations under Section 74 in the Cumulative Supplement section, these cases are again compiled. Quotation is made from Ruling Case Law, Volume 18, Section 939, to the effect that the overwhelming weight of authority outside Ohio supports the abcve ruling. The compiler of the notes makes the observation that certain listed cases were necessarily overruled by the Supreme Court of Ohio in the case of Pennsylvania Railway Company v Hobbs, 96 Oh St 584. I am unable to understand this observation since the report of the Hobbs case contains nothing more than an affirmation of judgment on the authority of Ash v Marrow, 20 Ohio 119. The Marrow case above referred to, as I read it, is in line with other cases establishing the rule.
It is quite true that in the trial of the instant case there was a dispute on the factual question as to probable cause. My position is that taking the testimony in the strongest light favorable to plaintiff, there arises a question of law as to whether or not such facts constitute or disprove probable cause.
I also think that the rules and regulations of the Stores Mutual Protective Association should have been admitted in *49evidence. This was the entity with which The Lazarus Company had a service contract for protection against theft, shoplifting and numerous other unlawful acts.
Decided February 13, 1941. Carrington T. Marshall, Columbus. L. DeWitt Agler, for plaintiff-appellee. Wilson & Rector, Columbus, for defendant-appellant.I can see no reason why The Lazarus Company would not have the right to contract with the Stores Mutual or any other entity to take charge of any and all law violations occurring within their store. I understand fully that such a contract would not protect The Lazarus Company if in fact they were participants in the arrest of the plaintiff.
The exhibit offered in evidence would be supporting as to the claimed relationship and have a bearing on the issue as to whether or not the Stores Mutual were acting independently or as the agent of The Lazarus Company.
Furthermore, it is my opinion that the trial court was in error in admitting in evidence as an exhibit the letter written by attorney for the plaintiff following the time that she had been bound over to the grand jury.
Considering the record in its entirety, I do not think that a cause of action is made out against The Lazarus Company, and therefore the court erred in overruling counsel’s motion for a directed verdict.