Molton Realty Co. v. Murchison, 6 Div. 174

• Court: Supreme Court of Alabama
• Citation: 212 Ala. 561,103 So. 651
• Docket Number: 6 Div. 174
• Parties: MOLTON REALTY CO. v. MURCHISON.
• Decision Date: 09 April 1925

103 So. 651

212 Ala. 561

MOLTON REALTY CO. v. MURCHISON.

6 Div. 174

Supreme Court of Alabama

April 9, 1925

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action for malicious prosecution by D.E. Murchison against the Molton Realty Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Gibson & Davis, of Birmingham, for appellant.

Black &amp Harris, J.C. Burton, and W.C. Woodall, all of Birmingham, for appellee.

SAYRE J.

Appellee sued appellant in an action of malicious prosecution. The cause of action was alleged in a single count. Various grounds of error are assigned. Those requiring special statement are the refusal of the general affirmative charge requested by defendant and the overruling of its motion for a new trial, the grounds for the motion being that the verdict was contrary to the evidence, that no evidence was adduced to sustain the corporate act alleged in the complaint and that plaintiff failed to sustain his allegation of want of probable cause.

In the editorial note to Matson v. Michael, 81 Kan. 360 105 P. 537, L.R.A.1915D, 1, columns of adjudicated cases are cited to the proposition that:

"The overwhelming weight of authority, both in England and America, sustains the view that what facts, and whether particular facts, constitute probable cause, is purely a question of law in any case, irrespective of the condition of the evidence; that when the facts and circumstances relied upon to show probable cause, or want of it, are in dispute or susceptible of conflicting inferences of fact or the credibility of witnesses is involved, the truth and existence of the facts and circumstances is a question of fact exclusively for the jury; but whether the facts so found to exist constitute probable cause is still a question of law exclusively for the court; and that when there is no dispute in the evidence, and the facts and circumstances are admitted or clearly established by uncontroverted evidence, there is nothing to submit to the jury, and the court has only to say at once, as a matter of law, whether or not such facts and circumstances constitute probable cause."

Referring to the confusion which has arisen out of statements by the courts to the effect that "probable cause is a question of law" and "probable cause is a mixed question of law and fact," the editorial writer very correctly observes that these two statements harmonize perfectly when understood to mean that what facts and whether particular facts amount to probable cause is a question of law, but that what facts and whether particular facts exist, in a case in which the evidence as to the facts or any necessary particular fact is in dispute, is a question for the jury but whether such facts amount to probable cause is a question of law for the court. With these conclusions our cases are in accord. Ewing v. Sanford, 19 Ala. 605; McLeod v. McLeod, 75 Ala. 483; Gulsby v. L. & N.R. Co., 167 Ala. 129, 52 So. 392; American Rwy. Ex. Co. v. Summers, 208 Ala. 533, 94 So. 737. It results that whether in any particular case there are sufficient undisputed facts to constitute probable cause is a question for the exclusive determination of the court. Nothing to the contrary is said in Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308, 30 Am.St.Rep. 79. In that case it was said that, in deciding upon the existence of probable cause, the prosecutor's belief in the guilt or innocence of the plaintiff could not be considered, but that the test is the effect the facts might have upon the judgment of ordinarily prudent and reasonable men, and that, as we have seen, is a matter for the court. But if the facts, whether shown without dispute or as found by the jury in case of dispute, do not establish probable cause, then the question of malice, of honest belief, is for the jury. Lunsford v. Dietrich, supra. "No rule of law is better settled, both in England and in America," says Mr. Thompson, "than that in civil actions for damages for the malicious prosecution of a criminal action the question of probable cause is a question of law, which the judge must decide upon established or conceded facts, and which it is error for him to submit to the jury." 2 Thomp. Trials, § 1613. And Mr. Newell says that "what facts, and whether particular facts, constitute probable cause, is a question exclusively for the court," and more to the effect stated above. He says: "These rules involve an apparent anomaly, and yet few, if any, rules of the common law rest upon a greater unanimity or strength of authority." Newell on Mal. Pros. 277. The reason for this rule is well stated in Hess v. Oregon Baking Co., 31 Or. 503, 49 P. 803, in this language:

"This rule is peculiar to this class of actions, but is one of long standing, and founded upon sound reason, good authority, and public policy. Actions to recover damages for malicious prosecution have never been favored in law, although they have been readily upheld when it is shown that the prosecution was instituted through actual malice, and without probable cause. Malice in such cases is always a question for the jury, but as the authority to institute a criminal prosecution, and the extent of such authority, are derived from the law, the law must judge as to what will constitute probable cause therefor. The welfare of society imperatively demands that those who violate the law shall be promptly and speedily punished, and, to accomplish that purpose, the rule has been firmly established that any citizen who has good reason to believe that the law has been violated may cause the arrest of the supposed offender; and if, in doing so, he acts in good faith, the law will protect him against an action for damages, although the accusation may in fact be unfounded. This rule is founded on grounds of public policy to encourage the exposure of crime and the punishment of criminals, and when, therefore, the act of a citizen in thus enforcing the law is challenged, the court must determine the question, when the facts are admitted or established, as to whether he had probable cause for so doing, and not leave it to the arbitrament of a jury."

Other cases to the same effect may be found cited and quoted in the editorial note to Matson v. Michael, supra. That writer says:

"And in no case can the court, simply by defining probable cause to the jury, leave it to them to find whether the facts established in the case are within or without the definition, as such practice surrenders to the jury the court's duty of saying, as a matter of law, what is the legal effect of the facts found to exist, and leaves both the questions of law and fact to the arbitrament of the jury." Page 5.

Referring to the difficulty of applying this rule in practice where the facts are numerous and...