I dissent upon the grounds and for the reasons stated in the dissenting opinion of the Chief Justice herein. In addition thereto I dissent in toto from the conclusion of the main opinion herein that "good faith is undoubtedly an element of probable cause in malicious prosecution cases." I do not think that the question of good faith bears any relation to the issue of probable cause. It is in my opinion relevant solely to the issue of malice. To say that the defendant acted in bad faith in filing the charge against the plaintiff is but to say that he acted maliciously in so doing. When a wrongful act is done from a wrongful motive it is done maliciously in the eyes of the law, and it matters not whether that wrongful motive be an express desire to injure the plaintiff or whether it be a wish to gain an undue advantage to the defendant, or whether it spring from sheer wantonness. In either event it is equally wrongful, and in either event it constitutes malice in fact as the same is known to the law. Malice consists in the evil motive, the "malus animus," which inspired the act. (Davis v.Hearst, 160 Cal. 143, 164 [116 P. 530]; Griswold v. Griswold,143 Cal. 617, 620 [77 P. 672]; Vesper v. Crane Co., 165 Cal. 36,43 [L.R.A. 1915A, 541, 130 P. 876]; Redgate v.Southern Pac. Co., 24 Cal.App. 573, 584 [141 P. 1191].) If this be conceded, as I think it must, it seems to me to follow that the conclusion of the main opinion is in conflict with the rule concurred in by substantially all of the American cases and substantially all of the English cases during the past hundred years. There is much confusion and apparent conflict in the decided cases upon malicious prosecution, but there are three points upon which they are substantially all in perfect accord. These are: (1) that to justify recovery of damages for a malicious prosecution there must be a concurrence of two elements, namely, malice and want of probable cause; (2) that the burden is upon the plaintiff to allege and prove the existence of both of these elements; (3) that proof of malice is no evidence whatever of the want of probable cause (or, as it is sometimes stated, that want of probable cause cannot be inferred from malice). These three rules have been regarded as fundamental for more than a hundred years. But if the main opinion herein is to stand it will have the effect, as it seems to me, of utterly destroying the third rule above *Page 613 stated, and of rendering the first entirely inconsequential. If good faith is an essential element of probable cause, then proof of bad faith is proof of the want of probable cause. But bad faith is nothing else than malice, from which it must follow that proof of malice is evidence of the want of probable cause, and suffices to prove both of the essential elements above mentioned, notwithstanding that practically all of the decisions are to the contrary.
I have found no reasoned decision rendered within the last hundred years which decides that good faith is an essential element of probable cause. There are statements to that effect in numerous decisions, but those statements will be found, I think, in each case to have been the product of an unreasoned reliance directly or indirectly upon ancient precedents which have been rendered entirely valueless by the important and substantial changes which took place in the law of malicious prosecution during the eighteenth century. Under the ancient common law malicious prosecution was an action on the case in the nature of a conspiracy for falsely and maliciously procuring the plaintiff to be indicted and imprisoned. The want of probable cause was not then an element of plaintiff's cause of action. He was required to allege and prove only that the defendant had maliciously instigated a prosecution against him, that the same had terminated in his favor, and that he was damaged thereby. It was for the defendant to plead as an affirmative defense in the nature of justification that he had probable cause for the prosecution, and the burden of proving the existence of probable cause was upon the defendant. This rule was found to be subversive of the public welfare in that it resulted in criminals going unpunished because responsible citizens would not incur the risk incident to filing complaints against them. The rule was accordingly changed at some time prior to 1797 (Savil v. Roberts, 1 Salk. 13, 1 Ld. Raym. 374;Panton v. Williams, 2 Q. B. 169, 1 G. D. 504, 10 L. J. Ex. 545), so as to require the plaintiff to allege and prove the want of probable cause as an essential element of his cause of action, to which declaration the plaintiff could enter a general plea of not guilty. This change had the effect, of course, of shifting the burden of proof upon the issue of probable cause from the defendant to the plaintiff, and such has been the rule ever since. The occurrence of this fundamental *Page 614 change in the law is adverted to in Ball v. Rawles, supra (93 Cal., at p. 229), and in Panton v. Williams, supra (2 Q. B., at p. 193). It has happened not infrequently that long since that change occurred courts have continued to rely upon the authority of precedents established prior to the change, without realizing that the change in the law had rendered these precedents valueless. This is illustrated by the passage relied upon in the majority opinion herein from Ball v. Rawles, supra, wherein this court said: "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." That statement assumes that the burden rests upon the defendant to show probable cause, and it evidently grew out of a consideration of the old English cases prior to 1797. Of course, it is not necessary for the defendant to show anything whatever, unless and until the plaintiff shall have producedprima facie evidence of both malice and a want of probable cause, and it is then necessary for the defendant only to rebut the showing made by the plaintiff. Statements are to be found in Harkrader v. Moore, 44 Cal. 144, Ball v. Rawles,supra, Runo v. Williams, 162 Cal. 444 [122 P. 1082], andFleischhauer v. Fabens, 8 Cal.App. 30 [96 P. 17], each of which does, when considered alone and taken at its face value, give support to the conclusion of the main opinion herein. But each of the decisions in Harkrader v. Moore and Ball v.Rawles is in conflict with itself, as is pointed out in the dissenting opinion of the Chief Justice herein. The same thing is true in Runo v. Williams, and for like reasons. When it is said, in effect, in one paragraph of an opinion that proof of malice is no evidence of want of probable cause, and in another paragraph thereof it is said in effect that proof of malice isproof of want of probable cause, one of these two statements must be wrong. In Fleischhauer v. Fabens the district court of appeal merely followed, without questioning it, the rule as stated in Harkrader v. Moore and Ball v. Rawles.
The passage in Newell on Malicious Prosecution (sec. 11, p. 325) to the effect that "the law requires that one in instituting a criminal prosecution shall act in good faith or under an honest belief of the guilt of the party arrested; *Page 615 and this notwithstanding that the party prosecuting has received legal advice and proceeded in accordance therewith" is directed to the question of good faith as an element in the affirmative defense of "advice of counsel." This is apparent not only from the context but from a consideration of the case of Roy v. Goings, 112 Ill. 656, which is the sole authority cited by the author in support of this passage. The question of good faith as an element of the defense of "advice of counsel" has no relevance to the question of bad faith as an essential element of plaintiff's cause of action. Advice of counsel is an affirmative defense by way of confession and avoidance. By pleading it the defendant, in effect, confesses plaintiff's allegation of want of probable cause and seeks to avoid the same by showing that, notwithstanding the absence in fact of probable cause, he was advised by counsel that it did exist and that he acted in reliance upon such advice. Good faith is therefore an essential element of his claim that he relied upon the advice of counsel. It is not in this respect an element of probable cause, but is rather an element of that which the defendant offers as a substitute therefor.
The definition of probable cause given by Newell as the accepted definition thereof, by its very terms, negatives the contention that good faith is an element hereof. It is as follows: "Reasonable or probable cause is defined to be such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person is guilty." (Newell on Malicious Prosecution, sec. 1, at p. 252.) It is true that the author adds thereto the explanation that "it does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution." It is apparent from the context that the "honest and reasonable belief" there referred to is not a belief in the guilt of the plaintiff, but is rather a belief in the actual existence of the facts and circumstances which go to make up probable cause. Good faith and bad faith are purely subjective and relate solely to a state of mind. It seems to be equally clear that probable cause is wholly objective and must consist in those external facts and circumstances which are known to the defendant or which are believed by him to exist. *Page 616
The cases of Potter v. Seale, 8 Cal. 217, Eastin v. StocktonBank, 66 Cal. 123 [56 Am. Rep. 77, 4 P. 1106], Fulton v.Onesti, 66 Cal. 575 [6 P. 491], Dawson v. Schloss,93 Cal. 194 [29 P. 31], Sandell v. Sherman, 107 Cal. 391 [40 P. 493], Booraem v. Potter Hotel Co., 154 Cal. 99 [97 P. 65], Montz v. Nevins, 40 Cal.App. 202 [180 P. 537],Burke v. Watts, 188 Cal. 118 [204 P. 578], Stein v. Lacassie,189 Cal. 118 [207 P. 886], and Murphy v. Davids, 181 Cal. 706 [186 P. 143], do not, as I read them, lend any support to the conclusion of the main opinion upon the point here under consideration. The cases of Potter v. Seale, Dawson v. Schloss, and Stein v. Lacassie seem to me to be in such irreconcilable conflict with the main opinion herein that they must be considered as overruled thereby. In Potter v. Seale, it was said that "public policy and public security alike require that prosecutors should be protected by the law from civil liabilities, except in those cases where the two elements of malice in the prosecutor, and want of probable cause for the prosecution, both concur.
"Though malice be proved, yet if there was probable cause, the action must fail. Malice may be inferred from want of probable cause, but want of probable cause cannot be inferred from malice, but must be affirmatively shown by the plaintiff. As to the question of malice, it is one solely for the jury, and to sustain this averment the charge must be shown to have been willfully false." (The italics are the court's.) InDawson, v. Schloss it was held that the following instruction, "If you find in this case that malice existed upon his [defendant's] part, then the plaintiff would be entitled to recover," was clearly erroneous, but that inasmuch as it appeared upon the record to have been given at defendant's request, defendant could not complain thereof upon appeal. InStein v. Lacassie the following instruction had been given by the trial court: "You are instructed that if you find from the evidence in this case that the criminal proceedings against plaintiff were instituted by defendant over a fixed and malicious determination of her own, and not from the advice of counsel, or that she did not communicate a full, fair and true statement of all the facts known to her to the sheriff and the district attorney, and that the district attorney did not advise her there was probable cause for the arrest, then such would constitute lack of probable cause," and this *Page 617 court said: "It would seem to require no argument to show that this instruction is erroneous, and is prejudically so, since it might well be that the defendant herself might have had abundant cause for insisting upon and procuring plaintiff's arrest upon the charge of having poisoned her horse, even though, in so doing, she was acting upon a fixed and malicious determination of her own and without the advice of counsel; and even though she had not communicated all of the facts known to her to the sheriff and district attorney, or made a full, fair and true statement of the facts to these officials, and even though the district attorney had not advised her that there was probable cause for the plaintiff's arrest." If, as is held in the main opinion herein, "good faith is undoubtedly an element of probable cause in malicious prosecution cases," it seems to me to follow inevitably that the instruction last quoted was correct and that the decision in Stein v. Lacassie is now overruled.
Turning now to the evidence in the instant case, I concede that there is some evidence tending to prove that defendant acted in bad faith in filing the insanity complaint. In other words, there is some evidence of malice. I concede also that there is substantial conflict in the evidence directed to the defense of advice of counsel, and that defense is therefore properly eliminated from further consideration upon this appeal. But I find no evidence whatever tending to prove a want of probable cause. There is an abundance of evidence to prove the existence of probable cause, but that also may be eliminated from our consideration because the burden did not rest upon the defendant to prove the existence of probable cause. It rested upon the plaintiff to prove the absence of probable cause, and even though there were no evidence whatever tending to prove the existence of probable cause, it would still be the duty of the trial court to direct a verdict in favor of the defendant unless the plaintiff produced some substantial evidence tending to prove a want of probable cause. The circumstance that defendant's testimony was contradicted by the plaintiff and, to that extent, impeached, has no tendency whatever to prove a want of probable cause. The fact that a witness lied in 1923 is no evidence that he stole a pig in 1920. By the same token, proof that the defendant testified falsely in 1923 would be no evidence that he acted without probable cause in 1920. *Page 618 (It is not intended to suggest hereby that the defendant did in fact testify falsely, but merely that the jury might have so inferred from the conflict in the evidence.)
It is not necessary to here review the evidence upon the question of probable cause. The main opinion herein concedes, in effect, that there is no evidence of a want of probable cause except that which tends to prove only that the defendant acted in bad faith; in other words, that which tends solely to prove malice. But proof of malice is no evidence of a want of probable cause unless we are prepared to overrule practically all of the decided cases upon that subject, including our own decisions above referred to, as well as the following:Grant v. Moore, 29 Cal. 644, 698; Anderson v. Coleman, 53 Cal. 188; Jones v. Jones, 71 Cal. 89, 91 [11 P. 817];Smith v. Liverpool Ins. Co., 107 Cal. 432, 436 [40 P. 540];McKenna v. Heinlen, 128 Cal. 97, 102 [60 P. 668]; Lee v.Levison, 173 Cal. 166 [159 P. 438]; Burke v. Watts,188 Cal. 118 [204 P. 578]; Redgate v. Southern Pac. Co.,24 Cal.App. 572, 584 [141 P. 1191]; Jirku v. Brod, 42 Cal.App. 796,798 [184 P. 413].
I am convinced that it was the duty of the trial court to grant the motion for the directed verdict and that the judgment thereon should be affirmed.
Rehearing denied.
In denying a rehearing the court filed the following opinion on January 17, 1924: