A

(April 22, 1907.)

PPEAL by defendants from a judgment of the Superior Court for King County 119 N. W. 215, citing Chapman v. Dodd, 10 Minn. 350, Gil. 277, and Fiola v. McDonald, 85 Minn. 147, 88 N. W. 431, and holding that where the evidence was conflicting, the question of probable cause was properly submitted to the jury, as it was a question of fact. A holding of this kind, however, does not seem necessarily in conflict with the rule sustained in the majority of cases in this jurisdiction, for the reason just stated in connection with the Michigan cases.

Miss.-Furness v. Porter, Walk. (Miss.) 442; Greenwade v. Mills, 31 Miss. 464; Whitfield v. Westbrook, 40 Miss. 311; McNulty v. Walker, 64 Miss. 198, 1 So. 55.

Mo.-Miller v. Brown, 3 Mo. 127, 23 Am. Dec. 693; Brant v. Higgins, 10 Mo. 728; Hill v. Palm, 38 Mo. 13; Sharpe v. Johnston, 59 Mo. 557; Moody v. Deutsch, 85 Mo. 237; Stubbs v. Mulholland, 168 Mo. 47, 67 S. W. 650; Carp v. Queen Ins. Co. 203 Mo. 295, 101 S. W. 78; Hanna v. Minnesota L. Ins. Co. 241 Mo. 383, 145 S. W. 412; McGarry v. Missouri P. R. Co. 36 Mo. App. 340; Warren v. Flood, 72 Mo. App. 199; Christian v. Hanna, 58 Mo. App. 37; Bosch v. Miller, 136 Mo. App. 482, 118 S. W. 506; March v. Vandiver, 181 Mo. App. 281, 168 S. W. $24. And see other cases referred to, infra, this section.

in plaintiff's favor in an action brought to recover damages for alleged malicious prosecution. Reversed.

The facts are stated in the opinion. Messrs. Metcalfe & Jurey, for appellants:

The burden rested upon the plaintiff to show by a preponderance of the evidence a want of probable cause.

19 Am. & Eng. Enc. Law, 2d ed. 700; Noblett v. Bartsch, 31 Wash. 24, 96 Am. St. Rep. 886, 71 Pac. 551; Stewart v. Sonneborn, 98 U. S. 187, 25 L. ed. 116; Strehlow v. Pettit, 96 Wis. 22, 71 N. W. 103; Graham v. Fidelity Mut. Life Asso. 98 facts, that the defendant had probable cause for instituting the prosecution against the plaintiff, was proper. Whether he had such cause or not depended partly upon the undisputed facts in the case, partly upon facts which were in dispute, and which were required to be determined by the judge from the evidence, exercising in that regard the function of a jury, and partly upon facts and inferences to be deduced by the judge, in the exercise of the same function, from circumstances connected with the conduct of the parties. The real question which the case presented at the time when this request was submitted was whether, from all the facts in the case, both those which were not in dispute and those which were settled by the court, probable cause for instituting the prosecution against the plaintiff appeared; and this question was the question which the trial judge decided." See also other cases from this jurisdiction cited infra, III. c, 1.

N. Y.-M'Cormick v. Sisson, 7 Cow. 715; Pangburn v. Bull, 1 Wend. 345; Master v. Deyo, 2 Wend. 424; Gorton v. De Angelis, 6 Wend. 418; Weaver v. Townsend, 14 Wend. 192; Baldwin v. Weed, 17 Wend. 224; Bulkeley v. Smith, 2 Duer, 261; Bulkeley v. Keteltas, 6 N. Y. 387; Besson v. Southard, 10 N. Y. 236; Hall v. Suydam,

Neb.-Turner v. O'Brien, 5 Neb. 542; Ross v. Langworthy, 13 Neb. 492, 14 N. W. 515; Dreyfus v. Aul, 29 Neb. 191, 45 N. W. 282; Jonasen v. Kennedy, 39 Neb. 313, 58 N. W. 122; Nehr v. Dobbs, 47 Neb. 863, 66 N. W. 864; Bank of Miller v. Richmon, 64 Neb. 111, 89 N. W. 627, affirmed on rehearing in 68 Neb. 731, 94 N. W. 998; Bechel v. Pacific Exp. Co. 65 Neb. 826, 91 N. W. 853: Clark v. Folkers, 1 Neb. (Unof.) 96, 95 N. W. 328.

N. H.-Cohn v. Saidel, 71 N. H. 558, 53 Atl. 800.

N. J.-Sunderbrand v. Shills, 82 N. J. L. 700, 82 Atl. 914.

And see Weisner v. Hansen, 81 N. J. L. 601, 80 Atl. 455, a case tried in the lower court without a jury, in which the court on appeal said: "We are also of opinion that the refusal of the trial judge to find as a matter of law, upon the undisputed

62; Miller v. Milligan, 48 Barb. 30; Carpenter v. Shelden, 5 Sandf. 77; Garrison v. Pearce, 3 E. D. Smith, 255; Burns v. Erben, 40 N. Y. 463; Fagnan v. Knox, 66 N. Y. 525, reversing 8 Jones & S. 41; Thompson v. Lumley, 50 How. Pr. 105; Waldheim v. Sichel, 1 Hilt. 45; Rhodes v. Brandt, 21 Hun, 1; Kline v. Hibbard, 80 Hun, 50, 29 N. Y. Supp. 807, affirmed without opinion in 155 N. Y. 679, 49 N. E. 1099; Palmer v. Palmer, 8 App. Div. 331, 40 N. Y. Supp. 829; Bankell v. Weinacht, 99 App. Div. 316, 91 N. Y. Supp. 107; Malich v. Josephson, 50 Misc. 315, 98 N. Y. Supp. 671; Clark v. Palmer, 116 App. Div. 117, 101 N. Y. Supp. 759, affirmed without opinion in 191 N. Y. 540, 84 N. E. 1110; Goodman v. Bedras, 123 N. Y. Supp. 250; Schmidt v. Medical Soc. 142 App. Div. 635, 127 N. Y. Supp. 365, appeal dismissed in 206 N. Y. 730, 100 N. E. 1133; Laird v. Taylor, 66 Barb. 139. And see Connelly v. McDermott, 3 Lans.

19 Am. & Eng. Enc. Law, 2d ed. 673; Levy v. Fleischner, 12 Wash. 15, 40 Pac. 384; Voss v. Bender, 32 Wash. 566, 73 Pac. 697; Noblett v. Bartsch, 31 Wash. 24, 96 Am. St. Rep. 886, 71 Pac. 551; Newell, Malicious Prosecution, pp. 14, 278280; Krause v. Bishop, 18 S. D. 298, 100 N. W. 434; Atchison, T. & S. F. R. Co. v. Smith, 60 Kan. 4, 55 Pac. 272; Anderson v. Friend, 85 Ill. 135; Gorton v. De Angelis, 6 Wend. 418; Miller v. Chicago, M. & St. P. R. Co. 41 Fed. 898; Figg v. Hanger, 4 Neb. (Unof.) 792, 96 N. W. 658; Turney v. Taylor, 8 Kan. App. 593, 56 Pac. 137; Lacey v. Porter, 103 Cal. 597, 37 Pac. 635; Magowan v. Rickey, 64 N. J. L. 402, 45 Atl. 804; Rogers v. Olds, 117 Mich. 368, N. W. 671; Richardson v. Dybedahl, 14 S. D. 126, 84 N. W. 486; Krause v. Bishop, 18 S. D. 298, 100 N. W. 434.

Tenn. Kelton v. Bevins, Cooke (Tenn.) 90, 5 Am. Dec. 670; Dodge v. Brittain, 1 Meigs, 84; Williams v. Norwood, 2 Yerg. 329; Memphis Gayoso Gas Co. v. Williamson, 9 Heisk. 314; Cooper v. Flemming, 114 Tenn. 52, 84 S. W. 801.

Tex.-Landa v. Obert, 45 Tex. 539; Ramsey v. Arrott, 64 Tex. 320; Gulf, C. & S. F. R. Co. v. James, 73 Tex. 12, 15 Am. St. Rep. 743, 10 S. W. 744. And see McDaniel v. Needham, 61 Tex. 269; Culbertson v. Cabeen, 29 Tex. 247; Martin v. Butner, 54 Tex. Civ. App. 223, 117 S. W. 442; Kruegel v. Lemmon, Tex. Civ. App. —, 115 S. W. 608.

Vt.-French v. Smith, 4 Vt. 363, 24 Am. Dec. 616; Driggs v. Burton, 44 Vt. 124.

Va.-Crabtree v. Horton, 4 Munf. 59; Boush v. Fidelity & D. Co. 100 Va. 735, 42 S. E. 877.

Wash.-Levy v. Fleischner, 12 Wash. 15, 40 Pac. 384; Richardson v. Spangle, 22 Wash. 14, 60 Pac. 64; Noblett v. Bartsch, 31 Wash. 24, 96 Am. St. Rep. 886, 71 Pac. 551; Voss v. Bender, 32 Wash. 566, 73 Pac. 697; Finigan v. Sullivan, 65 Wash. 625, 118 Pac. 888; Baer v. Chambers, 67 Wash. 357, 121 Pac. 843, Ann. Cas. 1913D, 559; Anderson v. Seattle Lighting Co. 71 Wash. 155, 127 Pac. 1108.

W. Va.-Moats v. Rymer, 18 W. Va. 642, 41 Am. Rep. 703.

Wis.-Woodworth v. Mills, 61 Wis. 44, 50 Am. Rep. 135, 20 N. W. 728; King v. Apple River Power Co. 131 Wis. 575, 120 Am. St. Rep. 1063, 111 N. W. 668, 11 Ann. Cas. 951. But see Eggett v. Allen, 106 Wis. 633, 82 N. W. 556, second appeal in 119 Wis. 625, 96 N. W. 803; Haas v. Powers, 130 Wis. 406, 110 N. W. 205; Collins v. Shannon, 67 Wis. 441, 30 N. W. 730. MATSON V. MICHAEL is in accord with this rule.

In Atchison, T. & S. F. R. Co. v. Watson, 37 Kan. 773, 15 Pac. 877, the court said: "The rule is that in a case where there is a substantial dispute about facts constituting the existence or want of probable cause, it is for the jury to determine what facts

It

75 N. W. 933; Brinsley v. Schulz, 124 Wis. 426, 102 N. W. 918; Lancaster v. McKay, 103 Ky. 616, 45 S. W. 887; Huckestein v. New York L. Ins. Co. 205 Pa. 27, 54 Atl. 461; Tandy v. Riley, 26 Ky. L. Rep. 98, 80 S. W. 776; Staunton v. Goshorn, 36 C. C. A. 75, 94 Fed. 52; Markley v. Kirby, 6 Kan. App. 494, 50 Pac. 953; Sanders v. Palmer, 5 C. C. A. 77, 14 U. S. App. 297, 55 Fed. 217; Atchison, T. & S. F. R. Co. v. Watson, 37 Kan. 773, 15 Pac. 877; Moore v. Northern P. R. Co. 37 Minn. 147, 33 N. W. 334; Molloy v. Long Island R. Co. 59 Hun, 424, 13 N. Y. Supp. 383; Taylor v. Baltimore & O. S. W. R. Co. 18 Ind. App. 692, 48 N. E. 1044; Palmer v. Palmer, 8 App Div. 331, 40 N. Y. Supp. 829; Burt v. are proved, and for the court to say whether or not they amount to probable cause. is therefore generally the duty of the court in such a case, when evidence is given tending to prove or disprove the existence of probable cause, to submit to the jury its credibility, and what facts it proves, with instructions that the facts found amount to proof of probable cause, or that they do not. The court should group the facts in the instructions, which the evidence tends to prove, and then instruct the jury that if they find such facts have been established, they must find that there was or was not probable cause. This rule must not be made a pretext by which a question primarily for the court is transferred to the jury. There must be a substantial dispute about the existence of probable cause before it can properly go to the jury, and if about the facts that are claimed to prove or disprove probable cause, there can fairly be said to be a dispute, a conflict of testimony, irreconcilable statements of witnesses, a strong flavor of improbability, then the jury are the sole judges of these, as of every other material fact in the case; but if the evidence on this question, fairly considered and impartially weighed, produces in the mind of the court a reasonable conviction of the existence or want of probable cause, then it is the clear duty of the court to instruct the jury accordingly. The dispute must be of such character as to compel the court to weigh evidence and determine the credibility of witnesses, before it ceases to be a question of law for the court, and becomes an issue of fact for the jury. Whenever the evidence of the existence or want of probable cause produces in the mind of the court a reason. able doubt as to its proper determination, then it should be submitted to the jury."

This statement of the law is found in Pennsylvania Co. v. Weddle, 100 Ind. 138: "The instructions given by the court upon the subject of probable cause left to the jury the question of whether the facts constituted probable cause. This was error. It was for the jury to find the facts, and for the court to decide whether or not the facts constituted probable cause for the

Tracy had six small children dependent on him, with no other person to care for them, appellants called upon the prosecuting attorney and asked his consent to dismiss the criminal prosecution against Tracy. They were accompanied by Tracy himself, and claim that he admitted his guilt, and implicated Simmons. The appellants further stated to the prosecuting attorney that, if Tracy was released, they did not think it would be just to prosecute Simmons, and asked for his discharge also. Both defendants were then discharged, with the consent of the prosecuting attorney, upon payment of costs by the appellants. The respondent, Simmons, thereupon insti

both as to the law and as to the facts, but this does not change the respective duties of court and jury, for the dispute as to the law is to be settled by the court, while the dispute as to the facts is to be settled by the jury. In the case at bar the theory of the trial court was radically wrong. The facts hypothetically assumed in the instructions were not only such as tended to establish probable cause, but were, if true, such as in law did constitute probable cause. It was therefor the duty of the court to instruct the jury, not that the facts as sumed might be considered as tending to establish probable cause, but that they did in law constitute probable cause. Instead of leaving the question to the jury, as to whether the facts did or did not constitute probable cause, the court should have pronounced the law upon the facts, leaving to the jury only the settlement of the dispute as to the existence or nonexistence of the facts."

In Boyer v. Bugher, 19 Wyo. 463, 120 Pac. 171, the court said: "The existence of probable cause involves the consideration of what the facts are, and what may reasonably be deduced from the facts. Hence it is a mixed question of law and fact. If the facts are not in dispute, the question is for the court, but upon disputed facts the jury must be left to pass under proper instructions. Cooley, Torts, 181. In Stew art v. Sonneborn, 98 U. S. 187, 194, 25 L. ed. 116, 119, Mr. Justice Strong, delivering the opinion of the court, quoted approvingly the following statement of the doctrine found in Sutton v. Johnstone, 1 T. R. 493, 1 Eng. Rul. Cas. 765: The question of probable cause is a mixed question of law and of fact. Whether the circumstances alleged to show it probable are true and existed is a matter of fact; but whether, supposing them to be true, they amount to a probable cause, is a question of law.' And the learned justice continued the discussion of the question by saying: 'It is therefore generally the duty of the court, when evidence has been given to prove or disprove the existence of probable cause, to submit to the jury its credibility and what fact it

tion.

proves, with instructions that the facts found amount to proof of probable cause, or that they do not. Taylor v. Willans, 2 Barn. & Ad. 845, 1 L. J. K. B. N. S. 17. There may be, and there doubtless are, some seeming exceptions to this rule, growing out of the nature of the evidence, as when the question of the defendants' belief of the facts relied upon to prove want of probable cause is involved. What their belief was is always a question for the jury.' With reference to the province of the court and jury, respectively, in determining the existence or want of probable cause, the result of the authorities in this country is stated in 26 Cyc. 106-109, as follows: 'Primarily what constitutes probable cause is a question of judicial opinion. What facts, and whether all or sufficient undisputed facts, constitute probable cause, is therefore determined exclu sively by the court. The general rule is that, where there is a substantial dispute as to what the facts are, it is for the jury to determine what the truth is, and whether the circumstances relied on as a charge or justification are sufficiently established, and for the court to decide whether they amount to probable cause. According to the general, but not the universal, opinion, it is error to leave it to the jury, not only to determine the facts, but also whether they constitute probable cause; the court, not the jury, should draw that inference. The court may take a special verdict and determine the question of probable cause thereon as a matter of law, or it may instruct the jury hypothetically within the range of facts which the evidence tends to establish, as to what constitutes probable cause, and thus leave it to the jury to determine only the facts.'"

In Coleman v. Heurich, 2 Mackey, 189, where the trial judge left the question of probable cause and of malice entirely open for the decision of the jury upon the circumstances of the case, the court on appeal said: "The plaintiff contends that it was the duty of the judge, of his own motion, in the absence of special request to do so, to point out the facts testified to bearing