Sarwark Motor Sales, Inc. v. Woolridge

Decision Date12 July 1960
Docket NumberNo. 6511,6511
PartiesSARWARK MOTOR SALES, INC., a Corporation, and Dan O'Meara, Appellants, v. Alfred WOOLRIDGE, Appellee.
CourtArizona Supreme Court

Scott, Cavness & Yankee, Phoenix, for appellants.

Eugene C. Simon, and Stephen W. Connors, Phoenix, for appellee.

BERNSTEIN, Justice.

Appellants Sarwark Motor Sales, Inc. (hereinafter called 'Sarwark') and Dan O'Meara (hereinafter called 'O'Meara') appeal from a judgment of the Superior Court of Maricopa County, entered upon a jury verdict, awarding Alfred Woolridge (hereinafter called 'plaintiff') actual damages in the sum of $250 and punitive damages in the sum of $5,000, and from an order denying appellants' motions for judgment notwithstanding the verdict and for a new trial. Plaintiff's complaint set forth one cause of action sounding in malicious prosecution and false imprisonment.

The record shows that on October 13, 1955 plaintiff visited the used car lot owned by Sarwark for the purpose of buying a used automobile. Forrest E. Jackson, a salesman for Sarwark, waited on plaintiff and showed him a convertible automobile, which plaintiff drove out of the lot. Plaintiff testified that Jackson had given him permission to test drive the convertible; Jackson denied that he had given such permission. Shortly thereafter, Jackson reported to O'Meara, vice-president and general manager of Sarwark, that the car was missing. O'Meara checked with the other salesmen, all of whom denied having given permission to plaintiff to remove the car. O'Meara then called the police and singed a stolen car report which led to the arrest, trial and subsequent acquittal of plaintiff.

The evidence shows that prior to his arrest, plaintiff had voluntarily returned the car to the Sarwark lot. There was also testimony that another employee of Sarwark told O'Meara, either the next day or a week later, than he recalled hearing Jackson give plaintiff permission to test drive the convertible. There was substantial conflict in the evidence as to the events that led to the arrest of plaintiff, and thereafter, and especially the part played by O'Meara. The details of the evidence need not be set forth further, in view of our decision that a new trial is necessary.

Appellants assign as error the instructions of the court relating to the element of probable cause. Their position, in sum, is that the court erroneously instructed the jury to determine the existence of probable cause, which is a question of law for the court.

The elements of a cause of action for malicious prosecution are described in Prosser, Law of Torts, § 98 (2d ed.), as follows:

'a. A criminal proceeding instituted or continued by the defendant against the plaintiff.

'b. Termination of the proceeding in favor of the accused.

'c. Absence of probable cause for the proceeding.

'd. 'Malice,' or a primary purpose in instituting the proceeding other than that of bringing an offender to justice.'

See also 1 Harper and James, Law of Torts, § 4.1; Restatement of Torts, § 653.

Thus, 'absence' or 'want of probable cause' is a separate element of a cause of action for malicious prosecution. As stated in McClinton v. Rice, 76 Ariz. 358, 366, 265 P.2d 425, 430, the question is, did the plaintiff 'show want of probable cause, one of the essentials of malicious prosecution?' Probable cause was there defined as 'a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing the accused is guilty of the offense' (76 Ariz. at page 367, 265 P.2d at page 431). See also, Griswold v. Horne, 19 Ariz. 56, 165 P. 618, L.R.A.1918A, 862; Cunningham v. Moreno, 9 Ariz. 300, 80 P. 327.

With respect to the point here in issue, the Court in McClinton v. Rice, supra, stated:

'What facts are sufficient to constitute probable cause is a question of law.' 76 Ariz. at page 367, 265 P.2d at page 431.

The precise roles played by the court and jury in resolving this question of law as to probable cause were clearly set forth in this Court's opinion in Murphy v. Russell, 40 Ariz. 109, 9 P.2d 1020. There it was stated:

'Whether a given state of facts constitutes probable cause is always a question of law to be determined by the court, and it cannot relieve itself of this burden by casting it upon the jury. McDonald v. A. & P. R. Co., supra; Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116; Ball v. Rawles, 93 Cal. 222, 28 P. 937, 27 Am.St.Rep. 174; Bell v. Keepers, 37 Kan. 64, 14 P. 542; Moore v. Northern Pac. R. Co., 37 Minn. 147, 33 N.W. 334. The only function of the jury in this respect is to determine what the actual facts were. If, therefore, taking the evidence in the strongest manner in favor of plaintiff, the court is of the opinion that as a matter of law the facts so proved constitute probable cause for the prosecution, it is its duty to instruct the jury to return a verdict in favor of the defendant. Jirku v. Brod, 42 Cal.App. 796, 184 P. 413; Brown v. Selfridge, 224 U.S. 189, 32 S.Ct. 444, 56 L.Ed. 727; Richardson v. Powers, 11 Ariz. 31, 89 P. 542. If, however, the evidence is conflicting, so that on one conclusion as to the facts drawn therefrom probable cause exists, while from another it does not, it is then for the jury to determine the true state of facts and to apply the law as laid down by the court to those facts. Ball v. Rawles, supra; 38 C.J. 505. But, in order that the jurors may do this, it is obviously necessary that the court should instruct them specifically as to what state of facts will constitute probable cause, and what will not.

* * *

* * *

'There are two methods whereby the court and jury can respectively discharge their proper functions in this respect. The first, and perhaps the surer, is by the court's submitting a special verdict to the jury and then applying the law to the facts so found. De Lamater v. Little, 32 Idaho 358, 182 P. 853; Burton v. St. Paul, etc., R. Co., 33 Minn. 189, 22 N.W. 300; Helwig v. Beckner, 149 Ind. 131, 46 N.E. 644, 48 N.E. 788; Panton v. Williams, 114 Eng.Reprint 66. The second, and probably the commoner, method is for the court, by means of a hypothetical instruction, to group the facts which the evidence tends to prove, and then instruct the jury that, if they find one set of facts to have been established, they should find that there is probable cause, while, if they find the other, they should find there is not. Grant v. Moore, supra; Stewart v. Sonneborn, supra; Runo v. Williams, 162 Cal. 444, 122 P. 1082; Sweeney v. Perney, 40 Kan. 102, 19 P. 328; 38 C.J. 513.' 40 Ariz. at pages 112, 113, 9 P.2d at page 1021.

See also, McDonald v. Atlantic & Pacific R. R., 3 Ariz. 96, 21 P. 338; Leeker v. Ybanez, 24 Ariz. 574, 211 P. 864.

These rules, which are clearly established in this State, are in accord with the law generally recognized and applied in other jurisdictions. Thus, the Restatement of Torts, § 673 states that 'the court determines whether * * * the defendant had probable cause for initiating the proceedings * * *.' The Comment to that section provides:

'The respective functions of the court and jury in determining the issue of probable cause can be exercised by them in one of two ways. The better but less usual method is to require the jury to find a special verdict setting forth the circumstances under which they find that the proceedings were initiated. Upon these findings the court then determines whether the defendant had probable cause. The usual method is for the court to charge the jury under what combination or combinations of circumstances, which may be found under the evidence, the defendant did or did not have probable cause for initiating the proceedings.'

See also Prosser, supra, § 98; 1 Harper and James, supra, § 4.5.

In the instant case the court instructed the jury on the issue of probable cause, as follows:

'Probable cause is a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinary prudent man in believing that the accused is guilty of the offense. The test generally applied is upon the appearances presented to the defendant, which would be Mr. O' Meara in this case, would a reasonably prudent man have instituted or continued the proceeding, the proceeding being the justice court action against Mr. Woolridge. Where there is probable cause to institute a proceeding against the accused, who in this case would be Mr. Woolridge, such fact constitutes a complete and absolute defense or bar in an action for malicious prosecution.

'The accuser, in this case it would be Mr. O' Meara, is not necessarily required to verify his information where it appears to be reliable. You are instructed, Ladies and Gentlemen of the Jury, that in an action for malicious prosecution the essential elements are that there has been made a criminal charge by the defendants against the plaintiff; that the charge was made maliciously and without probable cause. If the charge was made maliciously and yet there was probable cause to believe that the plaintiff was guilty of the offense of which he was charged, there can be no recovery. If there was no probable cause and no malice, there can likewise be no recovery.'

The above instructions are substantially similar to those under review in Murphy v. Russell, supra. There, as here, the plaintiff received judgment, based upon a jury verdict, in a malicious prosecution action. The court, as here, instructed the jury as to probable cause, in general terms which were not claimed to be incorrect. The objection was that the court delegated to the jury the duty of determining the issue of probable cause, which properly belonged to the court. In reversing the judgment and remanding the case for a new trial, this Court stated:

'In substance, the court told the jurors that, if on the whole case they believed that the true facts were such as would cause a reasonable person to believe plaintiff was insane,...

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    • United States
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    ...Whether a given state of facts constitutes probable cause usually is a question of law for the court. Sarwark Motor Sales, Inc. v. Woolridge , 88 Ariz. 173, 354 P.2d 34, 36 (1960). But where "the evidence is conflicting, so that on one conclusion as to the facts therefrom probable cause exi......
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