Dunnington v. Loeser

• Decision Date: 06 July 1915
• Docket Number: 4290.
• Citation: 150 P. 874,48 Okla. 636
• Parties: DUNNINGTON v. LOESER.
• Court: Oklahoma Supreme Court

150 P. 874

48 Okla. 636

DUNNINGTON v. LOESER.

No. 4290.

Supreme Court of Oklahoma

July 6, 1915

Syllabus by the Court.

Where in an action for malicious prosecution, the question of whether or not the defendant believed the facts relied upon to prove probable cause arises, that only raises an additional question for the jury to determine, but the court should still instruct the jury as to what facts do or do not amount to probable cause, and, in addition, instruct them that, even though the facts proved do constitute probable cause, if they further find that the defendant did not believe them to be true at the time he instituted the prosecution, he would not be protected by the fact that they did exist.

If the court correctly instructs the jury as to the law, if either party wants fuller instructions upon the law given by the court, they should request the instructions they desire given. But, if the court undertakes to instruct the jury as to the law, and does so incorrectly, that is prejudicial error.

To adopt a lax rule, favorable to actions for malicious prosecution, is to open the door in such actions, and to close the door to prosecutions, to turn society over to the lawless, and to create a dread on the part of any one who dared to prosecute.

Commissioners' Opinion, Division No. 2.

On petition for rehearing. Rehearing denied.

For former opinion, see 149 P. 1161.

BRETT C.

This case comes up on petition for rehearing. The opinion which we are called upon to examine in review reversed the lower court, because the instructions of that court left to the jury the question of what facts would or would not constitute probable cause, instead of instructing the jury that, if they found certain facts proved, such facts would show a want of probable cause, and, if they found certain other facts proved, such facts would constitute probable cause. In other words, the opinion holds, as stated in the syllabus, that:

"In an action for malicious prosecution, the question of what amounts to probable cause is one of law for the court. It is therefore the duty of the court, when evidence has been given to prove or disprove probable cause, to submit to the jury its credibility, with the instruction that certain facts amount to probable cause, or that they do not, as the case may be."

The petition for rehearing seems to admit that the opinion correctly states the general rule, but insists that the court has overlooked certain exceptions to this general rule, which we are called upon to examine and review, and which we shall now proceed to do.

It is first claimed that:

"The court overlooked the exception noted by the Supreme Court of Kansas in Michael v. Matson, 81 Kan. 360 105 P. 537, wherein the court held that there might be exceptions to the rule."

If there is an approval of any exception to the rule in that case, either express or implied, we have failed to find it. The trial court seems to have attempted to make an exception by telling the jury that, under certain conditions, they should find for the defendant, "unless they should further find that the defendant himself, after consulting with an attorney, believed there was no probable cause for the prosecution." But the Supreme Court, instead of approving this, says this addition "necessarily introduced a new, irrelevant, and confusing element into the problem, defendant's understanding as to what constitutes probable cause in law," and speaks in terms of condemnation rather than approval of this effort on the part of the trial court to inject that exception into the case. That court, in discussing the subject as to whether or not the question of what constitutes probable cause is one of unmixed law, says:

"There is some conflict on the subject, but the great preponderance of authority favors the view that the question of what facts are sufficient to constitute probable cause is one of unmixed law."

And again, in speaking of the fact that the trial court in that case gave an instruction defining in the abstract what constitutes probable cause, says:

"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 shall be rendered. Ball v Rawles, 93 Cal. 222, 233, 234, 28 P. 937, 27 Am. St. Rep. 174. Nevertheless such an instruction is ordinarily not prejudicial, where the charge includes a statement of what facts would amount to probable cause in the case on trial. Jonasen v. Kennedy, 39 Neb. 313, 319, 320, 58 N.W. 122. The difficulty here is that the last sentence of the instruction quoted, although open to a different construction, naturally tended to lead the jury to understand that they were to decide for themselves whether the facts known to the defendant when he caused the plaintiff's arrest were such as would justify an ordinarily prudent person in believing her guilty. This misleading tendency, if not corrected by a clear and accurate statement of what concrete facts would justify a reasonable belief of guilt, is a ground for reversal, unless it can be said from the record that the jury were not, in fact, misled."

And the instruction given in the case at bar of which the plaintiff in error complains is identical, word for word, with the instruction which the Kansas court is here criticizing and says is misleading, and open to different constructions, and is "ground for reversal." The position of the Kansas Court in that case seems clearly to be that:

"Where the facts are disputed, it must be left to the jury to determine what the facts are; but the court should instruct what facts amount to probable cause for an arrest and what do not."

And we think that view is in harmony with the great weight of authority. Ewing v. Sanford, 19 Ala. 605; Ball v. Rawles, 93 Cal. 222, 28 P. 937, 27 Am. St. Rep. 174; Davis v. Pacific Telephone & Telegraph Co., 127 Cal. 312, 57 P. 764, 59 P. 698; Seabridge v. McAdam, 108 Cal. 345, 41 P. 409; Smith v. Liverpool, etc., Insurance Co., 107 Cal. 432, 40 P. 540; Clement v. Major, 8 Colo. App. 86, 44 P. 776; Angelo v. Faul, 85 Ill. 106; Knapp v. Chicago, etc., R. Co., 113 Iowa, 532, 85 N.W. 769.

Again, the petition for rehearing complains that this court "overlooked the exception in the case of Stewart v. Sonneborn, 98 U.S. 187 ." In that case the court says:

"It is true that what amounts to probable cause is a question of law in a very important sense. In the celebrated case of Sutton v. Johnstone the rule was thus laid down: 'The question

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