Full opinion text
LENNON, J. This case came here on rehearing after decision by the district court of appeal, second district, first division, the opinion being written in the first instance by Mr. Presiding Justice Conrey. ■ After much consideration of the principal point presented in support of the appeal, we are constrained to hold that the reasoning and the conclusion of Mr. Presiding Justice Conrey clearly and correctly states the law of the case, and therefore we shall adopt his opinion as the opinion of this court. It is as follows: “This is an action to recover damages for the malicious prosecution of a proceeding wherein, by affidavit filed by the defendant before a justice of the peace, the plaintiff was charged with being an insane person. Upon hearing of said charge after plaintiff’s arrest, the proceeding was dismissed. At the trial of the present action the; court instructed the jury to render its verdict in favor of the defendant. From the judgment upon verdict in accordance with that instruction the plaintiff appeals. “The motion for a directed verdict was sustained by the court upon the stated grounds that there were sufficient facts uncontroverted to establish that there was probable cause at the time of the filing of the affidavit to warrant any reasonable person in filing an insanity complaint; and that, in filing the affidavit, the defendant was acting upon the advice of counsel after said counsel had been fully informed of all the material facts. Respondent contends that the court was right upon both of these propositions. “It is admitted that certain business relations had existed between plaintiff and defendant for two or three years prior to November 30, 1920, the date of said affidavit. The plaintiff further claims, and the defendant denies, that there had been illicit relations between them. The defendant is married and has two children. It appears that several months before November, 1920, the defendant canceled a mortgage indebtedness then owing to him by the plaintiff, and gave her nine hundred dollars, without receiving any consideration therefor. Whether this was a gift, as the plaintiff contends, or whether it was, as the defendant contends, a forced contribution of a blackmailing nature, it is not for us to decide. It does appear that in November there existed some kind of very serious trouble between these parties. The defendant testified that on the night of November 29th the plaintiff had demanded money from him and told him that if he did not comply with this demand ‘she would get my children and mutilate them so I would never want to look at them again in my life, and she would get my wife.’ Being asked if he considered that she was insane at that time, defendant replied: ‘She made these repeated threats, and I could not see how a person—I would say she was insane or unbalanced at times.’ Being asked if he ever knew her to have any insane delusions, he replied: ‘Only her threats to damage my children.’ Mr. Ault, who was the defendant’s attorney, testified that on the 30th day of November the plaintiff came to his office and appeared to be very much excited and wrought up; that, among other things, she said that on the night before the defendant had thrown her out of his office and beat her up, and that she was going to get even with him; that she was going to disfigure the defendant’s children’s faces until he could point to them until his dying day and know that Mabel Franzen put it there; that she would moan and cry and walk the floor, cursing the defendant and making these threats. Mr. Ault testified that he then went down to Mr. Shenk’s office, where Mr. Shenk made to him a statement of the events of the night before and of numerous other circumstances concerning defendant’s relations with the plaintiff; that the witness Ault told the defendant what the plaintiff had said to him, and the threats which she had made. Mr. Bitler, a deputy district attorney, held conversations during the same day, both with Mr. Ault and with the defendant. They both advised the defendant that there was reason to believe the plaintiff insane, and advised him to make the affidavit charging her with being an insane person. The justice of the peace after discussion of the matter with the defendant, gave him the same advice. “The plaintiff testified that she did not state to the defendant that she would mar or mutilate his children in any way, or do any violence to them, or make in substance any statement of that kind, either to him or to anyone else. She testified that she never asked the defendant for money, and that what money he gave her he gave voluntarily. “Without repeating the testimony in further detail enough has been stated to show the nature of the situation existing between the plaintiff and the defendant at that time on the plaintiff’s theory of the case and, alternatively, on the defendant’s theory of the case. There is manifestly a conflict in the evidence relating to the facts from which the existence or want of probable cause for the prosecution of the insanity proceeding must be determined. If in truth the plaintiff had not said to the defendant that she would disfigure the defendant’s children and injure his wife, his testimony that she had made such threats to him would be false, and this would have a tendency to destroy the effect of the evidence of his good faith in making the affidavit charging insanity of the plaintiff. From this it would follow that the testimony of Mr. Ault that the plaintiff had made the stated threats in his office, and that he had repeated them to the defendant (when taken in connection with the other testimony to which we have referred, including the plaintiff’s testimony), was not sufficient to justify the court in determining for itself the truth concerning that testimony without submitting the issue to the jury for decision. And if the ‘advice of counsel,’ or of the justice of the peace, was in part based upon a false statement of fact by the defendant, then the advice so given, and followed by the action taken by him pursuant to that advice, does not constitute a defense to this action. “In an action for malicious prosecution of a criminal charge the rule concerning the determination of the question of probable cause has been stated as follows: ‘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 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.’ (Ball v. Bowles, 93 Cal. 222, 234 [27 Am. St. Rep. 174, 28 Pac. 937].) “ The principle thus disclosed is equally applicable to an action to recover damages for malicious prosecution of an insanity charge. It may be that in this case the jury would have believed the defendant’s testimony, and would have disbelieved the plaintiff’s denial that she had threatened to mar or disfigure the faces of the defendant’s children, or to injure his wife. And for the purposes of the present question we assume, without deciding, that the making of such threats Avould have a tendency to justify belief that the person making such threats was of unsound mind. Bpt it was for the jury, and not for the judge, to determine these facts, which upon the evidence were not admitted and were not undisputed. The defendant testified that when he gave money and canceled the mortgage of plaintiff, in May, 1920, he did it ‘to get rid of the annoyance and worry.’ If that motive, rather than a genuine belief in the plaintiff’s insanity, was the sole cause of his action in filing the. affidavit and causing her to be arrested on a charge of insanity, then he was not legally justified in so proceeding. We are not intimating any opinion that he was so influenced. Neither are we concerned with the fact, that upon her own showing that plaintiff had been sustaining illicit relations with the defendant, or that, according to some of defendant’s witnesses, she had been guilty of such relations with other men. These facts, such as they may be, might affect the amount of a just award of damages for her loss of reputation, or on account of the ‘humiliation, shame and mortification’ suffered by her if she was wronged by the defendant in the matter of this insanity charge. But in any event, she was entitled to have the facts determined by the jury, to which, by law, the issue should have been submitted. ’ ’ It will be noted that Mr. Presiding Justice Conrey declares the rule in malicious prosecution cases to be that “.‘although the question of probable cause ... 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. ’ ” This rule emanates from and is supported by the following cases: Potter v. Seale, 8 Cal. 217; Harkrader v. Moore, 44 Cal. 144; Eastin v. Stockton Bank, 66 Cal. 123 [56 Am. Rep. 77, 4 Pac. 1106]; Fulton v. Onesti, 66 Cal. 575 [6 Pac. 491] ; Dawson v. Schloss, 93 Cal. 194 [29 Pac. 31] ; Ball v. Rawles, 93 Cal. 222 [27 Am. St. Rep. 174, 28 Pac. 937] ; Sandell v. Sherman, 107 Cal. 391 [40 Pac. 493] ; Booraem v. Potter Hotel Co., 154 Cal. 99 [97 Pac. 65]; Runo v. Williams, 162 Cal. 444 [122 Pac. 1082]; Fleischhauer v. Fabens, 8 Cal. App. 30 [96 Pac. 17]; Montz v. Nevins, 40 Cal. App. 202 [180 Pac. 537] ; Burke v. Watts, 188 Cal. 118 [204 Pac. 578] ; Stein v. Lacassie, 189 Cal. 118 [207 Pac. 886]. The rule recited by Mr. Presiding Justice Conrey is, however, subject to the qualification which the foregoing authorities declare and generally agree, in substance and effect, to be that if there is no dispute concerning the existence of the facts relied upon to show probable cause, the trial court must then determine as a matter of law whether such undisputed facts do or do not warrant an inference of probable cause. On the other hand, it is undoubtedly the rule that when the evidence bearing upon the question of probable cause is in conflict in any essential particular it is the province of the jury to determine whether or not facts exist which will warrant or reject an inference of probable cause. In short, to the extent that there is any dispute as to the existence of facts which may constitute the basis of a finding for or against probable cause such dispute must be submitted to the jury for its determination. (Newell on Malicious Prosecution, sec. 9, p. 14.) Good faith is undoubtedly an element of probable cause in malicious prosecution eases, and an actual and honest belief in the guilt of the plaintiff is obviously an integral part of good faith. The. actual belief of the defendant in the instant ease in the insanity of the plaintiff, based upon all of the facts within his knowledge must, therefore, of necessity have been an element of probable cause. In other words, “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” and where “that belief is in issue, what such belief was is a question of fact for the jury to determine.” This is declared to be the rule in a very carefully prepared note to Simmons v. Gardner, L. R. A. 1915D, 79, which reviews all of the authorities on the subject, including many of those cited and referred to herein. But even if the proposition that the honest belief of a prosecutor in the guilt of the defendant were not declared by numerous authorities, both ancient and modern, to be an element of probable cause, it would seem to be so upon principle for, as was said in the reasoned and seasoned case of Broad v. Ham, decided in 1839 and reported in 132 English Reprints, 1278, “It would be a monstrous proposition, that a party who did not believe the guilt of the accused, should be said to have reasonable and probable cause for making the charge.” The rule in this behalf is stated in Fleishhauer v. Fabens, supra, where it is held, in effect, that the good faith of the defendant is an essential element in the defense of probable cause; and that even though a defendant shows reasonable grounds of suspicion, sufficiently strong in themselves as to warrant a cautious man in the belief that there was probable cause for the prosecution, nevertheless if it be apparent that he did not himself believe in the guilt of the accused, then the circumstances upon which he relied will not suffice to shield and vindicate him. Good faith is an independent element of probable cause which is not limited solely to a defendant’s defense that he had probable cause. “The law requires,” says Newell, in his work on Malicious Prosecution, page 325, section 11, “that one in instituting a criminal prosecution shall act in good faith, or under an honest belief of the guilt of the party arrested; and this notwithstanding he has taken legal advice.” That this declaration of the rule was not intended by the author to be limited solely to the question of good faith as an element of the affirmative defense of “advice of counsel” is manifested by the very language in which the rule stated is embodied which declares the necessity of “honest belief of the guilt of the party arrested,” notwithstanding that the prosecutor may have taken legal advice. This conclusion is fortified by the fact that the caption of the text which deals with the rule declares that there shall be “good faith independent of legal advice.” In Roy v. Goings, 112 Ill. 656, which was cited to support the rule enunciated in Newell, there was involved the correctness of an instruction, which, it was contended “required too much in saying that appellant must have acted in good faith in starting the prosecution, after having obtained the opinion of the state’s attorney—that his advice should protect a party commencing such a proceeding, without reference to good faith.” The court held the instruction to be correct, saying, in the course of its opinion, “The law in all cases requires good faith, or, rather, a belief that the accused is guilty of the crime charged. The person claiming the accused is guilty, may know or believe he is not, although the attorney may suppose he is.” To the same effect is the case of Vann v. McCreary, 77 Cal. 434 [19 Pac. 826], wherein it was held that the advice of counsel for the commencement of a prosecution is no defense to an action for malicious prosecution if it appears that the defendant did not believe that the accused was guilty. The case last quoted from was cited with approval in the comparatively recent case of Murphy v. Davids, 181 Cal. 706 [186 Pac. 143], where it was said, in effect, that the defendants therein did not have probable cause for the prosecution there complained of because “knowing, as they did, that no crime had really been committed” they could not have depended upon the advice of counsel. The court then proceeded to hold that “whether or not defendants acted bona fide upon counsel’s advice is a question for the jury. (Potter v. Seale, 8 Cal. 217.) Advice of counsel is no defense if the person who pretends that he acted upon it did not believe the accused was guilty.” So, therefore, it would seem to be the settled rule that if it appears anywhere during the trial of the ease, whether in the prima facie case made by the plaintiff or in the course of the presentation of the defendant’s affirmative defense of probable cause, that the defendant did not actually believe in the guilt of the person charged with crime, then that fact is an essential element to be considered in the determination of the question of whether or not the defendant had probable cause. Conceding that the quotation from Newell was directed to the question of good faith as an element in the affirmative defense of advice of counsel, nevertheless the rule declared therein has application to the situation presented in the case at bar for the reason that, as the record before us shows, the trial of the case had proceeded to a point where the plaintiff and defendant had completed their respective cases upon all the issues, including that of probable cause, raised and expressly tendered by the answer of the defendant, which pleaded as well the “honest belief by the defendant” that the plaintiff was insane. Incidentally it should be noted that in keeping with the code rule that evidence in support of an issue must be adduced by a party holding the affirmative and that, therefore, the burden of proof rests upon the party who would be denied relief if no evidence were given on either side (Code Civ. Proc., sec. 1981; Carpenter v. Ashley, 15 Cal. App. 461 [115 Pac. 268]), it was incumbent upon the plaintiff in this ease to assume the burden of showing affirmatively the negative fact of want of probable cause in the defendant at the time he caused her arrest. At the conclusion of the plaintiff’s case, it was then the privilege of the defendant to interpose the affirmative defense of probable cause, if he deemed it necessary to do so. The instant case had proceeded beyond the point of a nonsuit and presumably, therefore, the plaintiff had made out a prima facie case. The defendant was sworn and testified as a witness for the plaintiff in her case in chief and he also took the witness-stand and testified in his own behalf, and in so doing evidently supplied whatever deficiency may have been in the plaintiff’s case concerning his belief in the insanity of the plaintiff at the time he instituted the prosecution of her upon the charge of insanity. It will thus be noted that in the case at bar no question arises as to where the burden of proof rests in the first instance, and the only question involved is as to when the issue as to the existence of facts bearing upon the question of probable cause must be submitted to the jury for its determination. Of course, in keeping with the rule above stated, if there had been no evidence whatever from which the jury might have inferred that the defendant did not in fact believe that the plaintiff was insane, the question of his belief should have been determined by the court on the basis of what, under the circumstances, was sufficient to cause a reasonable man to entertain a suspicion of the insanity of the plaintiff. There is, however, in the record before us sufficient evidence to have justified the jury in finding, had the question been submitted to it, that the defendant did not in fact believe that the plaintiff was insane when he swore to the affidavit charging her with insanity. Thus there is the denial of the plaintiff, which for the moment must be accepted as true, that she did not threaten to mutilate the defendant’s children and his family. This denial created an important conflict in the evidence bearing upon the question of defendant’s belief in the insanity of the plaintiff. These threats, so the defendant testified, were the only foundation for his belief that the plaintiff was subject to “insane delusions and hallucinations.” In addition there is abundant evidence in the record which tends to impugn the belief of the defendant in the insanity of the. plaintiff at the time of the institution of the proceedings which are stated as the basis of the cause of action for malicious prosecution. Thus there is evidence that the plaintiff went to the defendant’s office on a certain day at his invitation and that the defendant then and there said to her, “Mabel, dear, you remember that you are in business and have 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.” Certainly this last bit of evidence is some evidence of the fact that the defendant did not in fact believe in the truth of the charge which he had lodged against the plaintiff. Furthermore, there is the testimony of the defendant that when he gave money and canceled the mortgage of the plaintiff in May, 1920, he did it to get rid of the “annoyance and worry.” This testimony, when viewed in the light of the meretricious relations, which, it is claimed by the plaintiff, existed, and which, for the purpose of testing the correctness of the trial court’s ruling directing a verdict, must be assumed to have existed, might well have justified the jury in finding that the defendant was actuated by a desire to get rid of the plaintiff and to permanently escape “the annoyance and worry” attendant apon her continued attentions, rather than by a genuine belief in the plaintiff’s insanity. It cannot, we think, be gainsaid that this evidence, while it may, perchance, have been evidence of malice, was also some proof of the fact that defendant did not honestly believe in the insanity of the plaintiff when he preferred the charge against her. There is nothing in the eases of Potter v. Seale, Dawson v. Schloss, and Stein v. Lacassie, supra, holding that both malice and want of probable cause must concur and that want of probable cause cannot be inferred from malice, which runs counter to the conclusion expressed herein. We are not holding that want of probable cause may be inferred from malice, but we are holding that the same evidence which tends to prove malice may also, if it indicates a lack of belief on the part of the defendant in the guilt of the plaintiff, tend to prove want of probable cause. The instruction in the case of Stein v. Lacassie, supra, which upon appeal was held erroneous, declared that in the absence of proof of advice of counsel with a fair and full statement of the facts, that a malicious determination of the defendant constituted lack of probable cause. The instruction was clearly erroneous for it, in effect, declared that in the absence of proof of advice of counsel, want of probable cause must be inferred from malice. The criticism made of the instruction was that the defendant may have acted in good faith even though she was acting upon a fixed and malicious determination of her own. This is undoubtedly a just criticism for malice and lack of belief in the guilt of the accused are not one and the same thing. For example, the defendant, honestly believing in the guilt of the plaintiff, may, with a vindictive motive, prosecute the plaintiff. In such a situation, if, in addition to the honest belief of the defendant in the guilt of the plaintiff, there was the added fact of reasonable grounds for the belief, then there would be probable cause, despite the presence of malice. If, on the other hand, in addition to malice, there was a lack of belief by the defendant in the guilt of the plaintiff, there was want of probable cause, despite the existence of facts which would justify the suspicions of a reasonable man in the guilt of the accused. The opinion of the jury as to the existence of the facts involved in the determination of probable cause may be obtained in either of two alternative ways. One mode is the use of the special verdict. While this is apparently the less frequent it is in many respects the better practice. The trial court by this method gets the opinion of the jury as to what facts exist without giving any intimation as to what facts must exist to entitle either party to a judgment.' From the facts thus obtained the trial court determines the existence or nonexistence of probable cause as a matter of law. The prevailing practice, however, seems to be for the trial court to submit the question of probable cause to the jury with hypothetical instructions as to what facts in the particular case under consideration do or do not amount to probable cause. That is to say, the jury are instructed that if they find certain enumerated facts to exist, there was probable cause and their verdict must be for the defendant, but if they find certain other enumerated facts to exist there was want of probable cause and their verdict must be for the plaintiff. (Ball v. Rawles, and other cases supra.) The plaintiff contends that the trial court erred in admitting over her objection the testimony of a Mr. Ault concerning what she said to him. The ground of the objection was that Ault was the attorney for the plaintiff and that whatever she may have said to him was a privileged communication. It is clear that the testimony complained of and objected to does not fall within the category of confidential communications made between attorney and client. This is so because the record shows that whatever was said by the plaintiff to the attorney in question was said with the express understanding that it was to be communicated to the defendant and, moreover, it does not appear that the plaintiff went to the attorney in question seeking his advice in his capacity as an attorney. The judgment is reversed. Lawlor, J., Seawell, J., and Kerrigan, J., concurred.
WILBUR, O. J., Dissenting. I dissent. As the case involves an important question concerning the relative functions of court and jury in eases 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. 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 no't 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 Pac. 764, 59 Pac. 698]; McKenna v. Heinlen, 128 Cal. 97 [60 Pac. 668]; Johnson v. Southern Pac. Co., 157 Cal. 333 [107 Pac. 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 Pac. 817]; Lacey v. Porter, 103 Cal. 597 [37 Pac. 635]; Davis v. Pacific Telephone Co., 127 Cal. 313 [57 Pac. 764, 59 Pac. 698] ; McKenna v. Heinlen, 128 Cal. 97 [60 Pac. 668] ; Lee v. Levison, 173 Cal. 166 [159 Pac. 438]; Jirku v. Brod, 42 Cal. App. 796 [184 Pac. 413] ; Squires v. Southern Pac. Co., 42 Cal. App. 549 [183 Pac. 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 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 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 Pac. 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 Pac. 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 uneontroverted testimony or admitted by the defendant or his counsel. There may be eases, however, in which the actual knowledge or belief of the defendant is shown by the evideuce. 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 of law for the court and is to be determined by the standard of the ordinary man, yet if there is affirmative evidence of the actual 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 eases 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. (N. S.) 545; Hess v. Oregon German Baking Co., 31 Or. 503, [49 Pac. 803].) “And in Ball v. Rawles, 93 Cal. 222 [27 Am. St. Rep. 174, 28 Pac. 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 ease in the court of appeal, king’s bench division (Bradshaw v. Waterloo) & 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 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 the dicta 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 of Ball v. Rawles, 93 Cal. 222, 234 [27 Am. St. Rep. 174, 28 Pac. 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 beUef 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.” (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 so believed, 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. Bawles, 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. Bawles, 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 the question of probable cause is always to be determined by the court 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. Bawles, 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 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 or circumstances which would destroy such belief.” (Italics ours.) The court in Ball v. Bawles, 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 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 Pac. 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 the common standard of human judgment and conduct, and malice refers 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 faith in a malicious prosecution, or the want of sincere belief that the facts and circtmstances 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 Pac. 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 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 the arrest 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 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 are to be told that there was or was not probable cause, as the ease 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 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 the 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 ease, 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 he did not in fact believe in the truth of the charge. In the case of Runo v. Williams, 162 Cal. 444 [122 Pac. 1082], the judgment of the trial court in a ease 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 ...” 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 Pac. 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 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 states upon