Dunnington v. Loeser

• Citation: 1915 OK 407,149 P. 1161,48 Okla. 636
• Decision Date: 01 June 1915
• Docket Number: Case Number: 4290
• Parties: DUNNINGTON v. LOESER.
• Court: Oklahoma Supreme Court

1915 OK 407

149 P. 1161

48 Okla. 636

DUNNINGTON v. LOESER.

Case Number: 4290

Supreme Court of Oklahoma

Decided: June 1, 1915

Syllabus

¶0 1. MALICIOUS PROSECUTION--Probable Cause-- Question for Court--Instructions. 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 they do not, as the case may be.

2. SAME. In such cause, to leave to the jury the question of probable cause is error.

3. MALICIOUS PROSECUTION--Probable Cause--Instruction. 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.

4. APPEAL AND ERROR--Trial--Prejudicial Error--Instructions-- Request. 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.

5. MALICIOUS PROSECUTION--Right of Action. 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 dares to prosecute.

Parker & Simons, A. J. Titus, and A. R. Carpenter, for plaintiff in error.

C. H. Mauntel and A. C. Beeman, for defendant in error.

DEVEREUX, C.

¶1 The question presented by the exceptions to the charge of the court above set out raises the question as to whether or not probable cause is a question for the jury or a question of law. Michael v. Matson, 81 Kan. 360, 105 P. 537, is a strong authority in the case at bar. The instruction objected to in that case was as follows:

"You are instructed that, to constitute probable cause for criminal prosecution, there must be such reasonable grounds of suspicion, supported by circumstances sufficiently strong * * * to warrant an ordinarily cautious man in the belief that the person arrested is guilty of the offense charged, and, in this connection, you are further instructed that a mere belief that an innocent person is guilty of a crime is not alone sufficient to justify * * * his or her arrest. The facts must be such as would justify an ordinarily intelligent and reasonably prudent person in entertaining such belief. Whether in this case such facts had come to the knowledge of the defendant at the time he entered the complaint against the plaintiff is a question of fact for the jury to determine from a preponderance of the evidence."

¶2 In reversing the case on account of this instruction the court say:

"As it is not the province of the jury to determine what circumstances would induce a reasonably prudent man to believe another guilty of a crime, there seems to be no purpose in the giving of an abstract instruction on the 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 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."

¶3 In Vickers v. Logan, 44 N.C. 393, it is held:

"Whether certain supposed facts constitute probable cause for a prosecution is a question of law, to be decided by the court, and not by the jury. It is the duty of the judge, leaving to the jury to ascertain the existence of the facts, to declare what inference as to probable cause results therefrom; to leave the inference to the discretion of the jury is error."

¶4 In Stone v. Crocker, 41 Mass. 81, it is held:

"In an action for malicious prosecution, what facts and circumstances amount to probable cause is a question of law; whether they exist in the particular case is a question of fact."

¶5 In Stewart v. Sonneborn, 98 U.S. 187, 25 L. Ed. 116, it is held:

"The question as to what amounts to probable cause is one of law in a very important sense. 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 facts it proves, with instructions that the facts found amount to proof of probable cause, or that they do not."

¶6 In Lacey v. Porter, 103 Cal. 597, 37 P. 635, it is held:

"Actions for malicious prosecution are not favored in law, and will be sustained only when it is shown that the prosecution was, in fact, actuated by malice, and that the party instigating it had no reasonable ground for causing the prosecution. Malice is a question of fact; but what facts and circumstances amount to probable cause is a pure question of law, though whether such facts and circumstances exist is a question of fact."

¶7 These authorities are directly in point that the instructions to the jury above set out, and which were duly excepted to, were erroneous. We therefore recommend that the judgment be reversed, and this cause remanded for a new trial.

ON PETITION FOR REHEARING.

BRETT, C.

¶0 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."

¶1 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."

¶2 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."

¶3 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

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