Pacific National Co. v. Southwest Finance Co.

CRAIL, J.

This is an appeal by plaintiff (appellant) from a judgment of nonsuit entered in an action for damages for malicious attachment. In order to prevail the burden was on the plaintiff to establish (1) a lack of probable cause, and (2) malice. It is the contention of appellant that the trial court erred in its rulings on the issue of probable cause. “In actions of this character what constitutes probable cause is always a question of law for the court. As said in

Ball

v.

Rawles,

93 Cal. 222 [28 Pac. 937, 27 Am. St. Rep. 174] : ‘Malice is always a question of fact for the jury, but whether the defendant had or had not probable cause for instituting the prosecution is always a matter of law to be determined by the court. If the facts upon which the defendant acted are undisputed, the court, according as it shall be of the opinion that they constituted probable cause or not, either will order a nonsuit (or direct a verdict for the defendant), or it will submit the other issues to the jury; but, whether admitted or disputed, the question is still one of law to be determined by the court from the facts established in the case. If the facts are controverted, they must be passed upon by the jury before the court can determine the issue of probable cause; but the question of probable cause can never be left to the determination of the jury. ... It must instruct the jury upon this subject in the concrete, and not in the abstract, and must not leave to that body the office of determining the question, but must itself determine it, and direct the jury to find its verdict in accordance with such determination. The court should group in its instructions the facts which the evidence tends to prove, and then instruct the jury that if they find such facts to be established there was or was not probable cause, as the case may be, and that their verdict must be accordingly. ’ ”

(Holliday

v.

Holliday,

123 Cal. 26 [55 Pac. 703, 705].) The above rule, often quoted, is difficult to understand and hard to follow by a trial judge who suddenly finds himself presiding over a tempestuous legal 'battle involving the issue of want of probable cause.

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