I dissent. As the case involves an important question concerning the relative functions of court and jury in cases of malicious prosecution, the grounds of my dissent will be somewhat fully stated, and such statement will involve some repetition of the facts as stated in the main opinion. *Page 585
The trial court instructed the jury to bring in a verdict in favor of the defendant and the plaintiff appeals from that judgment. The defendant had sworn to an affidavit charging the plaintiff with being insane, that is to say, so far disordered in her mind as to endanger health, person, or property (Pol. Code, sec. 2168). Upon the hearing of the insanity charge the commission came to the conclusion that the plaintiff was not insane and the charge was dismissed by the court.
If the testimony of the defendant is believed, there can be no question about the propriety of the instructed verdict. He testified that the plaintiff, without cause, had threatened to mutilate defendant's daughters; that he had stated all the facts in the matter to his attorney and was advised by his attorney and also by a deputy district attorney, a justice of the peace, and a constable that in their opinion the plaintiff was insane and that he should institute a proceeding for her detention as an insane person. The question of whether or not there is want of probable cause is conceded by the plaintiff to be a question of law to be determined by the court (Davis v. Pacific Telephone Co., 127 Cal. 313, 319 [57 P. 764, 59 P. 698]; McKenna v. Heinlen, 128 Cal. 97 [60 P. 668]; Johnson v. Southern Pac. Co., 157 Cal. 333 [107 P. 611], and cases hereinafter referred to). Where, however, the question of whether or not there was a want of probable cause turns upon disputed testimony, it was for the jury to determine the facts. The burden of proving want of probable cause rests upon the plaintiff (Potter v. Seale, 8 Cal. 217, 221;Grant v. Moore, 29 Cal. 644; Levy v. Brannon, 39 Cal. 485;Anderson v. Coleman, 53 Cal. 188; Jones v.Jones, 71. Cal. 89 [11 P. 817]; Lacey v. Porter, 103 Cal. 597 [37 P. 635]; Davis v. Pacific Telephone Co., 127 Cal. 313 [57 P. 764, 59 P. 698]; McKenna v. Heinlen, 128 Cal. 97 [60 P. 668]; Lee v. Levison, 173 Cal. 166 [159 P. 438];Jirku v. Brod, 42 Cal.App. 796 [184 P. 413]; Squires v.Southern Pac. Co., 42 Cal.App. 549 [183 P. 695]).
In the case at bar, as the matter was not submitted to the jury, we must assume that they would have resolved all disputed questions of fact in favor of the plaintiff and upon this assumption determine whether or not the instruction to the jury to return a verdict in favor of the defendant was *Page 586 justified. The most important conflict in the evidence is that between the testimony of the plaintiff and defendant concerning the threats against the defendant's children, to which he testified. The plaintiff denied that she had made such threats to the defendant. The plaintiff testified that she had been maintaining meretricious relations with the defendant for three and a half years; that the defendant during all that time assured her that he loved her and no longer loved his wife and that he wished to get rid of his wife so that he could continue his relations with the plaintiff. The defendant flatly denied such relationship. We must, however, assume the plaintiff's testimony to be true. These assumptions cut two ways. They tend to show malice on the part of the defendant, that is, a desire to get rid of her for reasons wholly personal to himself, on the other hand, these assumed facts tend to show that the plaintiff was in a dangerous frame of mind.
These assumed facts also have another very significant result in this, that they deprive the defendant of the defense based upon the advice of his attorney, of the justice of the peace and of the district attorney, for in each instance he stated to him that the plaintiff had threatened to mutilate his children. Assuming, as we must, that this statement was untrue, he was not entitled to rely implicitly upon their advice to him to institute proceedings and such advice is not a protection to him in instituting that prosecution.
Before stating in greater detail the various undisputed facts and circumstances relied upon by the defendant as constituting probable cause, it is well to state the rule controlling in the determination of whether or not probable cause exists. The test for the determination of the question in the case at bar is whether or not a reasonable man having the information that the defendant had would be justified in entertaining a suspicion that the plaintiff was so far disordered in her mind as to endanger person or property. The conduct of the defendant must be considered in the light of what a reasonable person would be justified in believing or doing, and if a reasonable person having the information which had been brought to the defendant would have been justified in a suspicion that the plaintiff was insane, then his action was justified in law unless the defendant had information or knowledge derived from other sources which *Page 587 would so far offset the suspicious circumstances and facts brought to his attention as to indicate that a reasonable man having all the information which the defendant possessed would not have entertained the suspicion that the plaintiff was insane (see Johnson v. Southern Pac. Co., 157 Cal. 333 [107 P. 611]). The trial judge must place himself in the position of the defendant, knowing what he knew and having the information conveyed to him which was presented to the defendant, and ask the question, Would a reasonable man, knowing what the defendant knew and receiving the information that the defendant received, be justified in entertaining a suspicion that the plaintiff was so far disordered in her mind as to endanger her own person or her own health or her own property or the person or health or property of any other person? This must be the rule if the question of probable cause is one of law for the court and not one of fact for the jury. The standard for comparison must be the reasonable man and not the particular person whose conduct is under investigation if the question is one of law.
Defendant's Belief. There are, however, statements in some of the decisions in this and in other states in apparent conflict with this view, to the effect that the knowledge or belief or the good faith of the defendant is involved in the question of probable cause, as well as in the question of malice. (See Harkrader v. Moore,44 Cal. 144, 149, 150; Runo v. Williams, 162 Cal. 444, 451 [122 P. 1082].) These statements, however, must be construed in the light of the fundamental proposition acknowledged and enforced by all the decisions, including the very decisions in which these statements occur, that probable cause upon a given state of facts is a question of law to be determined by the court (Harkrader v. Moore, supra, p. 152), and consequently, it follows, to be determined by the standard of the ordinary man and not by the characteristics or belief of the particular person involved in the controversy. The good faith, the belief and the knowledge of the defendant are questions of fact and as such necessarily questions to be determined by a jury unless established by uncontroverted testimony or admitted by the defendant or his counsel. There may be cases, however, in which the actual knowledge or belief of the defendant is shown by the evidence. *Page 588 For instance, if the defendant admits that notwithstanding the appearance of guilt on the part of the person prosecuted he nevertheless was certain that the appearances were deceptive and that the person was innocent, he would not be justified in inaugurating the prosecution, although a reasonable man without such belief would be so justified. Here, however, we encounter another difficulty, namely, that a person of ordinary prudence is not bound to believe in the guilt of a person before he can act, but is justified in causing his arrest, or in instituting the prosecution if upon reasonable grounds he suspects that the person is guilty. If, therefore, the defendant admits that he had no fixed or definite belief in the guilt of the person prosecuted and was uncertain as to such guilt, but also testifies that he suspected him of the offense, such testimony, if credited, must be sufficient to exculpate him if he had reasonable grounds for his suspicion. For illustration, in the case at bar, if the defendant had admitted that he did not have a definite belief in the insanity of the plaintiff because he did not know enough about insanity to judge of that matter, but also testified that he suspected her of being insane, it follows that if such suspicion was founded on sufficient facts, he would be clearly acting with probable cause, notwithstanding his admission.
Perhaps no better illustration of the inaccuracy of the statement that the defendant must believe in the insanity of the person prosecuted can be presented than is shown in this case, where the defendant was compelled to take some action to protect his children from threatened injury, assuming, for purposes of illustration, that his testimony as to plaintiff's threats against his children is true. If she was insane she could not well be prosecuted criminally, and if the defendant suspected her of insanity it was certainly more reasonable to cause her detention as an insane person than to kill or injure her in defending his wife and children from the threatened injury. His suspicion of her insanity would make action on his part the more necessary, for he could not assume, with such a belief or suspicion, that the threats were the result of anger which would speedily pass away.
The rule established by the authorities upon the subject of belief as an element of probable cause would seem to be this: While the question of probable cause is always a question *Page 589 of law for the court and is to be determined by the standard of the ordinary man, yet if there is affirmative evidence of theactual belief of the defendant sufficient to justify a conclusion that he did not in fact suspect the plaintiff of being guilty of the crime with which she was charged, then the question of probable cause to that extent involves a question of fact to be submitted to the jury. The authorities are reviewed in a recent note to the case of Simmons v. Gardner, L.R.A. 1915D, 16, 78, as follows:
"There are some reported cases which appear at first sight to have somewhat relaxed the application of the rule that it is a question for the jury whether the facts brought forward in the evidence be true or not, but that what is reasonable and probable cause is matter of law, by seeming to leave more than the mere question of the facts to be proved to the jury; but upon further examination it is found that, although there has been an apparent, there has been no real departure from the rule. Thus, in some cases the reasonableness and probability of the ground for prosecution has depended not merely upon the proof of certain facts, but upon the question whether other facts, which furnished an answer to the prosecution, were known to the defendant at the time it was instituted. Again, in other cases, the question has turned upon the inquiry whether the facts stated to the defendant at the time, and which formed the ground of the prosecution, were believed by him or not. In other cases the inquiry has been whether, from the conduct of the defendant himself, the jury will infer that he was conscious he had no reasonable or probable cause. But in these and many other cases which might be suggested it is obvious that the knowledge, the belief, and the conduct of the defendant are really so many additional facts for the consideration of the jury, so that in effect nothing is left to the jury but the truth of the facts proved and the justice of the inferences to be drawn from such facts, both which investigations fall within the legitimate province of the jury whilst at the same time they have received the law from the judge, that, according as they find the facts proved or not proved, and the inferences warranted or not, there was reasonable and probable ground for the prosecution or the reverse. (Panton v. Williams, 2 Q. B. 169, 1 Gale D. 504, 10 L. J. Exch. *Page 590 (N.S.) 545; Hess v. Oregon German Baking Co., 31 Or. 503, [49 P. 803].)
"And in Ball v. Rawles, 93 Cal. 222 [27 Am. St. Rep. 174, 28 P. 937], the court said: 'Although the question of probable cause, as we have seen above, is a question of law, yet the belief of the defendant in a state of facts is itself a fact which it is proper to submit to the jury for its consideration; and whenever the good faith of the defendant, or his knowledge or belief in an existing state of facts, is an element in determining whether there was probable cause, the court should submit that question to the jury, as well as the other facts, which in its opinion bear upon that issue.' . . ."
The author of the note also states:
"C. Belief of Defendant. "That the belief of the defendant in the guilt of the plaintiff, or which is the same thing, in the truth of the charge made against that person in the prosecution complained of, is a material element in probable cause, seems to be clearly recognized, either expressly or impliedly, by all the definitions of that defense.
"And the rule is well established that where that belief is in issue, what such belief was is a question of fact for the determination of the jury. . . ."
The view I have expressed is not exactly in accord with that stated by the author of this note in the last paragraph quoted above, but is in substantial agreement with his conclusion in the first paragraph quoted, that it is only when there is proof upon the question of the actual belief of the defendant that such question is involved, and that when so involved it is a question of fact for the jury.
The rule is so stated in a recent English case in the court of appeal, king's bench division (Bradshaw v. Waterlow Sons,Ltd. [1915], L. R. 3 K. B. 527), as follows: ". . . the question of the honest belief of the defendants should not be left to the jury unless there is evidence of the absence of such belief. . . ." The case of Blachford v. Dod, 2 Barn. Adol. 179, 186, decided in 1831, is quoted from in support of this rule as follows: "It was not a question of fact for them whether the defendants believed that they had good ground for indicting the plaintiff, but all the material facts being ascertained, it was for the Judge to say whether *Page 591 the defendants had reasonable or probable cause for so doing. . . ."
I will presently examine the decisions in this state to show that this rule harmonizes all the decisions, and most of thedicta upon that subject, but, before doing so, for greater clarity, I will consider what sort of evidence would raise the question of fact now under consideration. Evidence of actual ill will, of hostility, of malice, would not alone be sufficient to raise the question of fact as to the defendant's belief, for these elements are always involved in and essential to the other branch of a case of malicious prosecution, namely, malice, and if evidence of malice alone, actual or implied, is sufficient to raise the question of fact as to the defendant's actual belief, then the question of probable cause in every case must be submitted to the jury, and such a conclusion is, of course, in conflict with every decision on the subject. (See cases hereinafter cited.)
The authorities go no further than this: That affirmative evidence that the defendant did not in fact believe that the plaintiff was guilty, such as defendant's own testimony or admissions, declarations, or conduct, may require the submission of the question of probable cause to the jury. Let us see if the authorities in this state are in harmony with the rule we have just stated. The rule is in conflict with some of the statements made by the court in the decision of the case ofBall v. Rawles, 93 Cal. 222, 234 [27 Am. St. Rep. 174, 28 P. 937]. It is there said: "As a principle of law, this instruction was erroneous in omitting to include therein the further element that the defendant did in fact believe that a crime had been committed by the plaintiff. . . . While it is not necessary to show that the crime has in fact been committed, it is necessary to show, not only that the defendant had reasonable ground to believe, but that he did in fact believe, that the crime had been committed, and that the plaintiff had committed the crime. Although the question of probable cause, as we have seen above, is a question of law,yet the belief of the defendant in a state of facts is itself afact which it is proper to submit to the jury for itsconsideration; and whenever the good faith of the defendant, or his knowledge or belief in an existing state of facts, is an element in determining whether there was probable cause, the court should submit that question to the *Page 592 jury, as well as the other facts which, in its opinion, bear upon that issue." (Italics ours.)
There is no doubt that these expressions by the court in that case, taken at face value, declare that unless the defendant in fact believed that the person charged was guilty, there was a want of probable cause, and that he must show that he sobelieved, but, as already seen, the burden of proving want of probable cause is upon the plaintiff. It is equally clear that the question of whether or not the particular individual who instituted the prosecution in fact believed that the crime had been committed is a question of fact, as is stated in the above excerpt from Ball v. Rawles, and that if the test in every case is the actual belief of the defendant as distinguished from the belief of a reasonable man, every case would have to be submitted to the jury upon the question of whether or not there was a want of probable cause. This conclusion, however, is directly in the teeth of the principle decided in Ball v.Rawles, supra, which was that the question of a want of probable cause was always a question for the judge, and not for the jury; that is, a question of law, and not a question of fact. It was declared there that the question should never be submitted to the jury. The discussion which we have quoted from that decision was provoked by the consideration of an instruction set out on page 233 of the opinion, and the discussion is premised with the following: "Inasmuch as thequestion of probable cause is always to be determined by thecourt from the facts in each particular case, it would seem unnecessary to give to the jury any definition of the term, or any instruction upon abstract propositions relating to this subject. These abstract rules will guide the court in determining the question, but are apt to lead the jury away from their function of passing upon the effect of the evidence in support of the probative facts which the court may direct them to find in order to determine in which way their general verdict should be rendered." (Italics ours.)
The instruction under consideration in Ball v. Rawles, supra, so far as related to the point now under discussion, is as follows: "If the facts which come to a person's knowledge are such as to create a belief that a crime has been committed by the person charged, in the mind of an impartial, reasonable man, this would be sufficient to constitute *Page 593 probable cause for making an arrest, although no crime had in fact been committed." (Italics, ours.) The point that the court is there trying to emphasize in pointing out the vice in this instruction is that it ignores the person's own knowledge of the facts as distinguished from "facts which come to a person's knowledge." This is emphasized by a sentence in the paragraph from which we have heretofore quoted and which we omitted in order to emphasize its importance, "The circumstances in themselves might be such as ordinarily to create such belief in the mind of a person, yet the defendant might not have that belief, for the reason that he had knowledge of other facts orcircumstances which would destroy such belief." (Italics ours.)
The court in Ball v. Rawles, supra, again and again declared that the question of a want of probable cause is one for the trial judge as a question of law and not one for the jury, and reversed the case because the trial court had submitted that question to the jury under general instructions defining want of probable cause. In discussing that question the court set out an instruction (page 226), given at the request of the plaintiff, to the effect that if the defendant "did not believe that plaintiff was guilty of any crime, and that he did not have sufficient knowledge, as a cautious and prudent man, acting conscientiously and impartially, to believe the plaintiff guilty of any crime, then, as a matter of law, there was no probable cause for the arrest and prosecution of plaintiff." In commenting upon that instruction the court said: "These were not the only facts of which evidence regarding probable cause had been given to the jury, and the above instructions, given at the request of the defendant, left to the jury the function of determining this question. The court should have told the jury, either that the evidence which was introduced was or was not sufficient to establish a probable cause, or that, as from the evidence they should find the facts which, in the opinion of the court, would or would not be sufficient to show as probable cause, their verdict should be for or against the defendant."
The effect of the decision in Ball v. Rawles, supra, is that the question of probable cause is always one for the court,even though it involves the belief of the defendant, thus overlooking the fact that the actual belief of the particular *Page 594 defendant is a question of fact. There was, however, no affirmative proof as to defendant's belief in the evidence. The rule upon the matter of the defendant's belief is thus stated in the later case of Griswold v. Griswold, 143 Cal. 617, 620 [77 P. 672], in which plaintiff sued the defendant for malicious prosecution in the institution of insanity proceedings. It was there said:
"It was incumbent upon plaintiff to prove both want of probable cause and malice. (2 Greenleaf on Evidence, 16th ed., sec. 449.) On the other hand, the defendant had the right to prove that he acted in good faith, without malice, and upon probable cause; that is, upon such facts and information as would induce a reasonably prudent man to believe that the plaintiff was insane. . . . Probable cause has reference to thecommon standard of human judgment and conduct, and malicerefers to the mind and judgment of the defendant in the particular act charged as a malicious prosecution. Malice need not indicate anger or vindictiveness, but it imports bad faithin a malicious prosecution, or the want of sincere belief thatthe facts and circumstances justify the prosecution. As said by Chief Justice Redfield in Barron v. Mason, 31 Vt. 197: 'For it is found in almost every book upon the subject, that if defendant, however causelessly, did really act in good faith and without malice in preferring the charge, he cannot be made liable for a malicious prosecution.' " (Italics ours.)
The court also said in that case (Griswold v. Griswold,supra): "And so in case a party is insane and dangerous to be at large. It would not do to hold honest parties in heavy damages for an error of judgment. If so it would be difficult to get responsible parties to make complaints. All that the law requires as a defense to this kind of an action is the existence of such facts and circumstances as would induce the belief in the mind of a reasonably cautious man that the party was insane at the time the charge was made. If such facts and circumstances existed, the plaintiff ought not to recover." (Italics ours.)
It was said in Lee v. Levison, 173 Cal. 166 [159 P. 438]: "This court from the earliest history of the state has adopted the definition for 'probable cause' derived from the discussion in Greenleaf's treatise on Evidence: 'Probable cause is a suspicion founded upon circumstances sufficiently *Page 595 strong to warrant a reasonable man in the belief that the charge is true.' "
This definition was approved in Potter v. Seale, 8 Cal. 217,221, where it was held to be well settled to be a question of law for the court. (Harkrader v. Moore, 44 Cal. 144.)
The case of Harkrader v. Moore, supra, was an action for malicious prosecution based upon a charge of theft made by the defendant against the plaintiff. Upon the trial of the action for malicious prosecution the defendant "requested an instruction that if the jury should find certain enumerated facts, these would, of themselves, amount to probable cause, and would entitle the defendant to a verdict. These facts were, 'that the defendant had the possession and control of the rails as the agent of the owner, and that plaintiff took said rails and converted them to his own use without the knowledge or consent of the owners or of said defendant, and that plaintiff afterwards denied to defendant that he had taken said rails and endeavored to conceal his act of taking said rails.' (44 Cal. 149. ) . . . The instruction as requested, ignoring, as it did, the actual belief of the defendant at the time he caused thearrest of the plaintiff, and having no reference to the circumstances, or to the appearances of guilt of the plaintiff, then known to the defendant, and under which he laid the charge against the plaintiff, was properly refused." (Id., p. 151.)
The court, in Harkrader v. Moore, supra, also discussed another instruction requested by the defendant and refused, to the effect that if they believed from the evidence "that at the time of the alleged prosecution, the facts of which the defendant, Moore, then had knowledge, were sufficient to warrant a reasonable man in the belief that the alleged charge was true, the plaintiff cannot recover in this action." The court criticised and justified its refusal of this instruction because "the defendant may not, in fact, have believed the charge to be true; and if he did not so believe, there could, as to him, be no probable cause for setting the prosecution on foot." (See, also, discussion on pages 150, 151, Id., supra.)
We have quoted the decision thus far somewhat at length because it seems to hold, and it is declared in the syllabus to hold, and is relied upon in the main opinion as holding, that the defendant must, in fact, believe as well as *Page 596 have reasonable grounds for believing at the time that the accusation was made that the charge was well founded. As has been already stated, the actual belief of a particular defendant as to the guilt or innocence of a person is always a question of fact, and can never be a question of law. The logical conclusion to be deduced from the above quoted and cited portions of the opinion in Harkrader v. Moore would seem always to require the submission to a jury of the question of probable cause, because an essential element therein is the actual belief of the actual defendant. But that this was not the view of the court which rendered the decision in Harkrader v. Moore, supra, is clear, for, after criticising the instruction in the manner hereinbefore stated, it is declared that the instruction was erroneous because it submitted to the jury the question of probable cause. The court thereupon proceeded to enunciate the rule that the question of probable cause was a question for the court and not for the jury. Upon that subject the court stated as follows: "But the proposed instruction is in another respect objectionable. It sought to submit to the jury the question of the existence of probable cause. . . . The authorities are substantially uniform that the question of probable cause, however presented, is a question of law, and, therefore, one to be determined by the Court. When the facts in reference to the alleged probable cause are admitted, or established beyond controversy, then the determination of their legal effect is absolute, and the jury axe to be told that there was or was not probable cause, as the case may be. When, however, the facts are controverted, and the evidence is conflicting, then the determination of their legal effect by the Court is necessarily hypothetical, and the jury are to be told that if they find the facts in a designated way, then that such facts, when so found, do or do not amount to probable cause. But in neither case are the jury to determine whether or not the established facts do or do not amount to probable cause."
We thus have in this case two entirely inconsistent declarations, one that the question of probable cause is always a question of law, and the other that probable cause involves the belief of the defendant in the truth of the charge made by him. The difficulty arises in part from the fact that the instruction under consideration instead of reciting the facts *Page 597 which, if known to the defendant, would have justified him as a reasonable man in acting in the belief that the charge was true, left them to determine, first, what facts the defendant knew, and, second, whether or not they justified him as a reasonable man in believing the charge to be true. This is pointed out in the decision now under consideration in the following language: "To inquire whether or not such facts as were known to the defendant were sufficient to warrant him as a reasonable man in the belief that the plaintiff was guilty, is to inquire not only what particular facts were known to him, but also, and at the same time, to determine their legal sufficiency as constituting probable cause." The basic questions under consideration in that case, then, were whether or not the defendant at the time he instituted the prosecution of the plaintiff had knowledge of the facts, which were relied upon by him on the trial as a justification for the prosecution, and, if so, whether trial jury should be permitted to first determine what the defendant knew about the matter, and, then, whether or not such knowledge so found by them justified him as a reasonable man in believing such facts not stated by the court, but to be found by the jury, to be a true charge. It was held that this could not be done.
This case, then, construed as a whole, in effect, declares that the element of the belief of the defendant in the guilt of the person he was prosecuting, in so far as it entered into the question of probable cause, in that case was a question to be determined by the court. We think this case is not in conflict with the true rule to be as we have heretofore stated in this opinion, that the question of the belief of the defendant should be submitted to the jury only where there is evidence concerning the condition of the mind of the defendant which tends to show that be did not in fact believe in the truth of the charge.
In the case of Runo v. Williams, 162 Cal. 444 [122 P. 1082], the judgment of the trial court in a case of malicious prosecution was reversed "For the error in refusing to permit defendant to testify directly on the subject of his belief, good faith, and motive in making the criminal charge as bearing on the issues of both probable cause and malice . . ." *Page 598
The questions referred to are as follows: "What was your motive and reason for instituting the criminal prosecution against Mr. Runo?" "Whether in instituting the criminal prosecution you were actuated by malice, hatred or ill feeling or whether you were actuated by an honest belief that he was guilty of the offense that you charged against him?" "When you instituted the criminal prosecution you honestly believed in good faith that he was guilty of the offense as charged against him?"
In discussing, and determining the admissibility of this evidence the court said: "It is not sufficient that the facts and circumstances were such as would lead a reasonable and prudent man to believe that the offense charged was committed, but it must also appear that he acted upon them in an honest and reasonable belief that the plaintiff was guilty. Probable cause is, in effect, the concurrence of the belief of guilt with the existence of facts and circumstances reasonably warranting the belief (Harkrader v. Moore, 44 Cal. 144; Dawson v. Schloss, 93 Cal. 194 [29 P. 31]).
"It is apparent, therefore, that a belief in the guilt of the plaintiff as to the offense charged was one of the relevant and pertinent facts to be shown by the defendant in support of his claim of probable cause in making the accusation.
"Nor can it be claimed that in addition to proof of his honest belief in the guilt of the plaintiff, it is not equally pertinent on the distinct issue of malice for the defendant to show such belief and his reason, motive, and good faith in making the criminal charge."
In determining the effect of this decision it should be noted that the only question passed upon by the court was the admissibility of the testimony of the defendant's belief when offered by himself for the purpose of defeating the plaintiff's case and of showing that there was no malice in the prosecution but that it was based upon an honest belief of the defendant in the plaintiff's guilt.
The supreme court in that decision was not considering the question of the relative functions of the court and jury. It is clear that the answer of the defendant to the questions propounded to him upon the witness-stand would have been relevant upon the question of probable cause or malice and favorable to himself if he testified affirmatively in response to the questions, and, on the other hand, if he should testify *Page 599 negatively and thus establish that he acted without belief in the guilt of the plaintiff and with malice, the evidence would be equally competent.
So far, then, as the discussion of the court in that case relates to the belief of the defendant as an element in the question of probable cause it must be interpreted in the light of the question under consideration. The court does not attempt to decide how the jury in that case should be instructed upon a new trial, but slates upon that subject: "The law is clearly and definitely settled how a jury shall be instructed in the cases of this character," citing in support of that statement the cases of Grant v. Moore, 29 Cal. 644; Harkrader v. Moore,44 Cal. 144; Eastin v. Bank of Stockton, 66 Cal. 123 [56 Am. Rep. 77, 4 P. 1106]; Fulton v. Onesti, 66 Cal. 575 [6 P. 491]; Ball v. Rawles, 93 Cal. 222 [27 Am. St. Rep. 174, 28 P. 937]; Smith v. Liverpool Ins. Co., 107 Cal. 433 [40 P. 540], and Scrivani v. Dondero, 128 Cal. 31 [60 P. 463].
There is another line of cases that should be considered in arriving at a conclusion in this case. The rule as to a want of probable cause for a prosecution in this case is the same rule invoked in cases of false imprisonment where the arrest is made without a warrant. (See 3 Cal. Jur. 120, sec. 65; 12 Cal. Jur. 432, sec. 4; People v. Kilvington, 104 Cal. 86 [43 Am. St. Rep. 73, 37 P. 799]; People, v. Melendrez, 129 Cal. 549 [62 P. 109].) In the case of People v. Kilvington, supra, it was held to be the duty of the trial court to determine the question of probable cause for an arrest in a criminal action for false imprisonment. In that decision there is no suggestion that the actual belief of the defendant was material, but the question for determination as there stated is whether or not he had reasonable grounds to believe that the offense had been committed, or, to quote the language of the decision, "Did the defendant, in view of the facts as presented to him at the time, have reasonable or probable cause to believe that the deceased had committed a felony?" (104 Cal. 92 [43 Am. St. Rep. 73, 37 P. 800].) In view of the fact that it was held to be error to submit to the jury the question of probable cause in that case, we quote at length from the decision.
"But the court erred in the manner in which it submitted the question of probable cause to the jury. Upon this point *Page 600 the court gave the following instruction: 'It is for the jury to determine from all the facts and circumstances of the case whether the defendant had reasonable cause to believe that a felony had been committed by the deceased. If you find from the evidence that he had such cause for belief, you will then determine whether, in the attempt to arrest the deceased, he used only such means as were necessary to prevent the escape of the deceased, and to effect his arrest.'
"This instruction submitted to the jury the entire question in reference to the existence of probable cause upon the part of the defendant to arrest the deceased, and that body was called upon not only to find whether the facts relied upon by the defendant to show such probable cause were true, but also, if true, to determine whether or not they were legally sufficient for that purpose. The instruction was erroneous, as it is not the province of the jury to decide in any case whether the facts and circumstances which they may find established by the evidence are sufficient to constitute probable cause. This principle of law is now settled beyond doubt or controversy, as a reference to a few of many cases which might be cited an that point will show. 'This question of probable cause, or reasonable ground for suspicion, whether it arises in actions for malicious prosecution or false imprisonment, is one of law, unless the evidence out of which it arises is conflicting, in which event it is the duty of the court to instruct the jury what facts, if established, will constitute probable cause, and submit to them only the question as to such facts.' (Burns v. Erben, 40 N.Y. 463; Bulkeley v.Keteltas, 6 N.Y. 384; Masten v. Deyo, 2 Wend. (N.Y.) 425;Pangburn v. Bull, 1 Wend. (N.Y.) 345; Driggs v. Burton, 44 Vt. 124; Panton. v. Williams, 2 Ad. E. (N.S.) 169;Sutton v. Johnston, 1 Term Rep. 493, 545.) And our predecessors in passing upon the same question in Harkrader v. Moore, 44, Cal. 152, said: 'The authorities are substantially uniform that the question of probable cause, however presented, is a question of law, and therefore one to be determined by the court. When the facts in reference to the alleged probable cause are admitted or established beyond controversy, then the determination of their legal effect is absolute, and the jury are to be told that there was or was not probable cause, as the case may be. When, however, the facts are controverted and the evidence is conflicting, *Page 601 then the determination of their legal effect by the court is necessarily hypothetical, and the jury are to be told that if they find the facts in a designated way, then that such facts, when so found, do or do not amount to probable cause.' The same rule is also announced in Grant v. Moore, 29 Cal. 644; Fulton v. Onesti, 66 Cal. 575 [6 P. 491], and in the late case ofBall v. Rawles, 93 Cal. 222 [27 Am. St. Rep. 174, 28 P. 937], where the whole question is elaborately discussed.
"As already stated, the facts in this case were undisputed, and the court ought, therefore, to have instructed the jury as to their sufficiency in law to justify the defendant in attempting to arrest the deceased; that is, whether they werelegally sufficient to induce a reasonable belief in the mind ofthe defendant that the deceased had committed a felony. The defendant requested the following charges upon this point: . . . Did the defendant, in view of the facts as presented to him at the time, have reasonable or probable cause to believe that the deceased had committed a felony?
"There is a substantial agreement in the decisions of the courts as to what constitutes probable cause or reasonable cause such as will justify one in arresting or prosecuting another upon a criminal charge; and perhaps as clear and comprehensive a statement of the rule as can be found is that of Shaw, C. J., in Bacon v. Towne, 4 Cush. (Mass.) 217: 'There must be such a state of facts,' said he, 'as would lead a man of ordinary care and prudence to believe, or entertain an honest and strong suspicion, that the person is guilty.' Applying this rule to the facts of this case, we think it must be held that defendant had reasonable cause to believe that the deceased may have committed a felony. . . ." (Italics ours.)
In the later case of People v. Melendrez, supra, it was held that the question as to whether or not the defendant in a criminal prosecution for false imprisonment had reasonable ground for belief in the guilt of the person arrested could not be taken from the jury where the court was of the opinion that no such ground existed, but could only be invoked in his favor. The court there referred to People v. Kilvington, supra, as follows: "The court simply applied in favor of the defendant the rule established in civil cases for malicious prosecution or false imprisonment; which is, *Page 602 that to establish probable cause 'there must be such a state of facts as would lead a man of ordinary care and prudence tobelieve or entertain an honest and strong suspicion that the person is guilty.' But this rule has never been applied, as against the defendant in a criminal case, to establish a want of probable cause for a mistaken belief, nor should it be. For in such cases the degree of intelligence evinced by the defendant must always be an important element in determining his guilt. Nor is it reasonable that the same rule should be applied to all of a class, including individuals of all grades of intelligence, from the least to the highest." (Italics ours.)
This case holds there that in civil actions the defendant's conduct is to be judged by the standard of an ordinary man to be determined by the court, but in a criminal action while this rule cannot be invoked against him, it can be invoked in his favor. In a recent civil case for false imprisonment the rule is again stated in Michel v. Smith, 188 Cal. 199 [205 P. 113], decided by this court in Bank, all justices concurring. The plaintiff had been arrested by the defendants as a deserter. In that case a judgment had been rendered upon a verdict in favor of the plaintiff. This judgment was reversed by us upon the ground that the defendants were justified as a matter of law in making the arrest. It was there stated: "The question to be decided, then, is this: Did the defendants, under the circumstances related, have reasonable ground tobelieve that the plaintiff was a deserter? Probable cause may be defined as a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true. (Potter v. Seale, 8 Cal. 217, 221.) The court must determine, as matter of law, whether the facts and circumstances as they appear, or are found to exist, constitute probable cause. (McKenna v. Heinlen, 128 Cal. 97,100 [60 P. 668]; McCarthy v. De Armit, 99 Pa. St. 63.)" (Italics ours.) In that case the plaintiff testified that at the time of the arrest he told the officers that he had notified the local board of his new postoffice address. This statement, if true, showed that the plaintiff was not a deserter. The officers disputed this testimony. It was held by us that the question of probable cause under the circumstances was one for the court to determine as a matter of law. It seems to me that it might *Page 603 be argued with equal force in that case as in this that the question of whether or not the particular officers believed the plaintiff guilty turned upon the question of whether or notthey believed the plaintiff's statement to them, in effect, that he was not a deserter. This question of their belief would be a question of fact, but the court held that as reasonable men they were not required to accept the statement of the party about to be placed under arrest, and determined the case upon a consideration of what, under the circumstances, a reasonable man was justified in believing and doing. If the defendant officers were not only required to act upon reasonable grounds for a belief, but also upon an actual belief, the decision in that case was wrong. If the rule in Michel v. Smith, supra, conflicts with the earlier cases relied upon in the main opinion it should control us as the latest decision of this court. If, however, it is consistent with the actual decisions in those cases, as I believe it is, it certainly should be followed, rather than to follow the dicta in our decisions that the belief of the defendant is in all civil cases for malicious prosecution an element of probable cause, and as such must be submitted to the jury. In my opinion the question of the defendant's actual belief should be submitted to the jury only where there is evidence upon the subject of the defendant's actual belief sufficient to support the conclusion that there the defendant did not in fact suspect the plaintiff of guilt, although he had reasonable grounds to do so.
In the case at bar, it seems clear that the defendant was, under all the circumstances of this case, warranted as a reasonable man in suspecting the plaintiff of being insane.
Defendant's Knowledge. We will next consider the question of the defendant's knowledge as affecting the question of probable cause. Upon the question of the knowledge of the defendant as distinguished from the belief of the defendant, it is clear that the burden of proving what the defendant knew is upon the plaintiff in a case of malicious prosecution, if such knowledge is relied upon to show a want of probable cause. Such proof having been made, the question is whether or not, with the knowledge and information possessed by the defendant, a reasonable man would be justified in instituting the proceedings; that is, would such a man be acting with probable *Page 604 cause? In the case at bar the defendant alone knew of his meretricious relations with the plaintiff. The facts of which they had knowledge persuaded the constable, the district attorney, the justice of the peace and the defendant's own attorney, all reasonable men, no doubt, that the plaintiff was insane, and they told these facts to the defendant and informed him of their belief, nevertheless, as he alone knew of his meretricious relations with the plaintiff, the question for the consideration of the court is not "did the defendant in fact believe that the plaintiff was or was not insane," but "would a reasonable man knowing all the facts which were known to the defendant by reason of having them brought to his attention by others and also knowing in addition the facts which he alone knew, namely, that such meretricious relations existed, have reason to suspect as a reasonable man that the plaintiff was insane?"
Good Faith. The question of good faith is always involved in a case of malicious prosecution, as an element in the question of malice, and when it is shown that the defendant in fact disbelieved the appearances of guilt, it is also an element in the question of probable cause, as heretofore stated.
Public Policy. The rule that probable cause is a question for the court is based upon consideration of public policy requiring that criminals be prosecuted without the hazard of claim for damages for malicious prosecution where the prosecutor acts upon reasonable grounds. This rule was stated by this court in a case of malicious prosecution growing out of a charge of insanity (Griswold v. Griswold, supra, hereinbefore quoted; see, also, note to 1915D, L.R.A. (N.S.), p. 89).
The cases all hold that where the facts are disputed, the question of probable cause is one for the jury to determine upon proper instructions, but this rule, of course, does not apply where, upon the undisputed facts, and a view of the disputed facts most favorable to the plaintiff, the court can say as a matter of law upon such facts that there was probable cause, and in such case a nonsuit or instructed verdict is proper. We are called upon in this case to determine whether upon the most favorable view of evidence, and of the inference to be drawn therefrom to sustain plaintiff's case, it appears that there was probable cause, and in determining *Page 605 that question we will leave the discussion as to the evidence of defendant's belief until the last.
We must thus assume in this case that the defendant testified falsely when he testified that the plaintiff made threats to him to disfigure his children; that he misrepresented the facts when he made a similar statement to his attorney, and that he was influenced by malice in his proceeding against the plaintiff, yet the question still remains as to whether or not a person of ordinary intelligence, that is, a reasonable man, was justified in believing or suspecting from the facts which were known to the defendant and the information given to him that the plaintiff was sufficiently deranged in her mind to be dangerous to herself or others (see Stein v. Lacassie, 189 Cal. 118 [207 P. 886]).
In this connection the undisputed evidence tending to create such a suspicion in the mind of a reasonable man may be stated as follows: The plaintiff at the time was under arrest upon a charge of threatening breach of the peace by reason of having made threats to kill a man named Erskine because Erskine had attached her automobile. This charge arose out of the fact when the constable attempted to make the attachment the plaintiff informed him that she intended to kill the attaching creditor and rushed into her apartment and secured a revolver with which she threatened to commit the murder, but the revolver was taken from her by the constable.
The justice of the peace, after conferring with the deputy district attorney, agreed with the latter that there was no doubt that an insanity charge should be made against the plaintiff and he so informed the defendant. The justice of the peace testified concerning this interview with the deputy district attorney, Mr. Bitler, as follows:
"He had seen her there at the courthouse that day and had observed her actions very closely and he asked me if I had and I said 'yes' at various times and particularly that day. He said in his opinion that there was no doubt but what a warrant should be issued or affidavit should be filed and a citation into court for an examination should be issued. Q. On the insanity charge? A. Yes, sir; on an insanity charge. Q. What did you say to him? A. I told him from what had occurred that day, I agreed with him." With reference to the defendant, this witness testified: *Page 606 "Q. Did you not tell him what your views were and advice was? A. Yes, sir. . . . Q. And that was the same you had given Mr. Bitler? A. Just the same." This witness also testified that before he had seen the defendant he had formed the opinion that the plaintiff was insane. "Q. She accused Shenk of being the instigator of the bondsman going off? A. Yes, sir; she said it was his work. Q. And, now, did you ever have any dealings with insane people? A. Quite a number of cases have come up down here; yes, sir. Q. What would you say, you considered the defendant here insane, didn't you, on that afternoon of that day? A. Yes; I thought she was at that time."
When asked to give the reason for believing she was insane he testified as follows: "Q. Tell the jury what you saw her do, the exact things you saw her do and the exact words you heard her say that led you to believe she was insane. A. Well, after she was taken over to the city jail, I passed over that way and at some distance, I heard her there singing and hollering and making a disturbance over there, but I could not repeat the exact words she used because I didn't pay enough attention to them. Q. Do you know whether or not it was her that was hollering there? A. Yes, sir; I knew her voice. . . . Q. So you decided she was insane, did you? A. I don't know that I came to any decision at that time. Yes, sir; I thought to myself she must be off. Q. She must be off; was she off or insane? A. Mentally unbalanced. Q. And what did you consider — you gave it quite a little consideration? A. Naturally at the time; yes. She was in court at that time. Q. What did you consider was the cause of this insanity? A. I don't know. Q. Trouble with Mr. Shenk? A. I didn't know what was the cause of it, I didn't attempt to learn at that time any cause. I didn't know enough to know what the trouble was that she was having with Shenk."
The witness in giving his reason for discharging her on the charge of threats to kill: "I found that in my opinion there was no danger of her killing Dad Erskine and of carrying out her threat to kill." He further testified: "My recollection of it [the evidence] is that she said she didn't mean what she said when she said 'I will kill him.' She was just excited and hysterical, and picked up the revolver and said 'If that old devil don't quit hounding me, I will *Page 607 kill him,' or something to that effect. But she didn't mean it."
It thus appears that the justice of the peace concluded from his observation of the plaintiff's conduct, and without reference to the threats defendant claims plaintiff made to him and without knowledge of their illicit relations, that the plaintiff was insane. This information was communicated to the defendant. The plaintiff denies that she so conducted herself, but as the justice of the peace so reported to the defendant, the defendant's conduct must be judged by the information given him and not by the fact, if it be a fact, that plaintiff did not create such a disturbance.
The witness Ault, an attorney who represented the defendant on the trial of this action, testified as follows with relation to the conduct of the plaintiff: "Q. Now, Mr. Ault, start in and state in detail, what you observed from the time of the filing of the — from the time you observed the plaintiff and the wind-up of your conversation with Mr. Shenk. A. I cannot give the exact date of this. It was either the 29th or 30th, or along in there, but it was in the morning of the day that the insanity charge was filed, the complaint. In my office, over the White Cross Drug Store, I was in my private room and the door opened. Miss Franzen came into my room. The moment she came in, she slammed the door after her, and I noticed she had been crying. Her hair was disheveled; she was very much excited and very much wrought up. She said to me, 'I am going to kill Dolph, the son-of-a . . .,' and I said, 'Who do you mean?' She said, 'I mean Dolph Shenk,' I said, 'Why, now listen, Mabel, I want you to understand I am Mr. Shenk's attorney, and I am his friend, and any statements of that sort you make to me, I am going to convey them back to Mr. Shenk.' She says, 'I don't care if you tell him. I want you to tell him, because I am going to publish it in the newspapers. I will publish it to the whole world. I am going to take it up with his wife.' I said, 'With that understanding, go ahead and tell your story.' I told her to sit down and she wouldn't. She kept walking back and forth in my office, wringing her hands. She would cry awhile, and I said to her, 'What do you mean by all this, Mabel?' She said that, I don't remember what terms she used then, but she says, 'He threw me out of the office last night, and beat me up, and I am going *Page 608 to get even with him.' I said, 'Why don't you get even withhim, then?' She says, 'I am not going to take that means of getting even with him; I have another.' I said, 'What is that?' She says, 'I am going to disfigure his children's faces until he can point to them until his dying day and know that Mabel Franzen put it there.' I said, 'Mabel, do you realize what you are saying?' and she says, 'I certainly do.' I said, 'Do you know you are making threats against innocent children that have nothing to do with their father's relations, conceding that you and Dolph Shenk were intimate, and that all you say is true, and that he did kick you out of the office, why pick on his children?' I said, 'Mabel, one of two things is wrong with you; you are either crazy or you are a fool, to make such a statement as that.' She says, 'It doesn't make any difference. That is what I am going to do, and when I get through with these children, I will finish up Mrs. Shenk.' I said, 'Mabel, there is another thing. Why should you make a threat against Mrs. Shenk, conceding this is all true, she isn't to blame for his actions.' She says, 'It doesn't make any difference, she is trying to come between us. Dolph has lived with me and supported me and he has brought me presents and taken me riding, and now he is trying to throw me down.' I said, 'Suppose all of that is true, you wouldn't carry out your threats against his children.' She says, 'I certainly would.' She kept walking up and down in my office, and walking into my library-room, and I have a big Morris chair sitting by the desk. She reclined in it. It is a reclining chair, and she would lean over the arm of the chair while she would moan and cry and then she would get up and start to walk the floor again, cursing him and making these threats, and I would repeatedly ask her not to do that, and try to show her where it was foolish to do such a thing. She must have stayed in my office an hour, all the time making these same threats that she was going to mutilate his children, and then get Mrs. Shenk, and she would break up his relations with Mr. Vosburg. She says, 'Dolph Shenk knows damn well I will do it because I have already carried out other threats.' She went back into my library again and sat down in the chair, and had a spell of crying. All the time of her abuse of him I was considerably worried about her. She was wringing her hands and twisting her *Page 609 handkerchief, and I sat there and must have talked to her fifteen minutes. She finally consented that she would not do anything; that she loved him so much that she would forget this, and that she would not harm a hair of his head. Immediately upon her leaving the place, I went down to Mr. Shenk's office. I don't know whether it was immediately, but it was very shortly afterward. . . . I believe Mabel made this statement in my office before I went down there, that Shenk thinks he is smart. He is going to try and get his wife out of town, but they are leaving to-night on the train, and I will be Johnny-on-the-spot, and I will do what I have threatened to do. I tried to argue her and discourage her about doing a thing like that, and then when I went down there I told him this, and I think that was when I advised it, or we discussed the advisability of putting an officer on her trail."
Thus, Mr. Ault, defendant's attorney, after an hour's interview with the plaintiff reported to the defendant that he had had this interview and, in effect, that after hearing her statement concerning the alleged illicit relations between the plaintiff and defendant and the defendant's denial of such relations, he advised the defendant that in his opinion the woman was dangerous and was insane, advised him to secure a guard to protect his wife and children. The plaintiff denies making these threats to Mr. Ault, but the defendant's conduct is to be judged by the information he had, namely, that the plaintiff had threatened to kill him, disfigure his children, and wreak revenge upon his wife, and that her conduct and conversation had caused Mr. Ault to conclude that the plaintiff was insane.
It is unnecessary to recite other testimony on the subject because it is clear from what has been said that the defendant as a reasonable man did not act without probable cause in filing the insanity complaint, even when we consider his own knowledge as well as the information and advice given him, unless he in fact did not entertain a bona fide suspicion of her insanity. Upon that subject the defendant testified that as early as May, 1920, the plaintiff secured money from him by threats of making him trouble by "telling his wife" and his principal, Mr. Vosberg, and that from these unwarranted threats he thought she was insane or unbalanced at times, and here it should be said that defendant paid the *Page 610 plaintiff nine hundred dollars cash, and a mortgage of two thousand three hundred dollars, in pursuance of such threats. Defendant testified he knew of no insane delusions on her part except "her threats to damage my children," on November 29, 1920, the day before defendant swore to the complaint charging the plaintiff with being insane. The defendant also testified as to his belief as follows: "A. He [Mr. Ault] told me that she was going to tell the party that I had had relations with her, and she was going, by reason of that statement, she was going to make me come through, and break up my family and my financial standing. Q. Did she state in what particular way she was going to, how she was going to arrive at that point? A. Yes, sir. Q. State what else you remember, if anything. A. He said she would — he said I would have to come through and if I didn't she would get my children and mar them for life so I would never want to look at them again, and also get the wife, as he put it. Q. Did you believe from what you had seen, and what had been told you, that your children and family were in danger? A. I most certainly did, sir. Q. Was that belief present when you signed that affidavit? A. Positively so, sir."
The defendant was also asked by his counsel when on the stand, "Did you, when you signed this affidavit, do it in good faith?" but the plaintiff objected to the question on the ground that the question called for a conclusion and that the defendant must be judged by his acts and not from his conclusions stated on the stand. The objection was sustained. The only direct evidence as to the actual belief of the defendant was thus favorable to the defendant. There was no evidence of his belief which contradicted this direct evidence. In no instance was he shown to have declared or admitted that he did not believe in fact that the plaintiff was insane.
Plaintiff, however, did testify that the day before Thanksgiving, in response to her threat to meet his wife, defendant said, "You had better keep still or I will put you where the bow-wows won't bite you." The conversation was related by her in part as follows: "A. So, I told him I was going over. I said, 'Dolph, I am going over to the train and my car will be up next to yours and I am going to tell your wife the truth. You are lying to one of us. You have kept *Page 611 this up for three and a half years and I am going to tell her the truth.' Q. What did you mean by that? A. He told me he and his wife were separated. Q. When did he first tell you that? A. When I first met him. Q. How long had he continued telling you the same thing. A. All the time. Q. Go ahead. A. He said, 'Mabel, dear, remember you are in business and have got a good thing here, remember what I am telling you. You had better keep still, or I will put you where the bow-wows won't bark at you.' Q. Tell all you said and what he said. A. I said, 'I didn't give a damn.' Q. Was that all that was said? A. So he said, 'Remember I am warning you.' "
In connection with that conversation she also denied any threats or statements concerning his children, except the following: "Q. Tell what you said and what he said. A. Well, I said I hoped to God somebody would do his daughters the way he did me and that is when he turned wrathy. He got mad. Q. Was that all you said about his family? A. Yes, sir. Q. That was what was said that night? A. Yes, and then he struck me when I said that."
These declarations and threats by the defendant, while tending to show malice against the plaintiff and a purpose on his part to prevent the plaintiff from coming into contact with his wife and children, are insufficient, directly or inferentially, to raise a conflict upon the question of the defendant's actual belief in the insanity of the plaintiff, as distinguished from the belief to be attributed to him as a reasonable man from the facts and circumstances known by him and called to his attention at and before the time he filed the insanity charge. The most that can be said of this evidence is that it shows a private motive for his prosecution, and this alone is not sufficient to overcome the other evidence of probable cause. A want of probable cause cannot be inferred from malice (see cases cited 33 Cent. Dig., Malicious Prosecution, sec. 39; 12 Dec. Dig., sec. 23, p. 1970, Malicious Prosecution, vol. 14; 2d Dec. Dig., sec. 23, p. 1761;Redgate v. Southern Pac. Co., 24 Cal.App. 573 [141 P. 1191];Potter v. Seale, 8 Cal. 217, 220), although malice may be inferred from a want of probable cause (12 Dec. Dig., sec. 32, p. 1982; Griswold v. Griswold, 143 Cal. 617 [77 P. 672]).
*Page 612I think the judgment should be affirmed.