Booraem v. Potter Hotel Co.

HENSHAW, J.

This action was prosecuted against the defendant to obtain damages for malicious prosecution. At the conclusion of the taking of plaintiff’s testimony defendant moved for a nonsuit upon several grounds. The court granted the motion and from the judgment which followed, plaintiff appeals.' As we think the court was correct in granting the nonsuit upon the ground that plaintiff had failed to prove a want of probable cause, no other of the grounds need be considered.

The law touching the question is both simple and settled. It is incumbent upon the plaintiff, and the burden of proof is upon him in an action of this kind, to prove want of probable cause.

(Davis

v.

Pacific Telephone Co.,

127 Cal. 312, [57 Pac.

[100]

764, 59 Pac. 698].) “What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case is a pure question of fact. The former is exclusively for the court, the latter for the jury.”

(Ball

v.

Rawles,

93 Cal. 222, [27 Am. St. Rep. 174, 28 Pac. 937].) If the facts going to establish the presence or absence of probable cause are controverted they must be passed upon by the jury before the court can determine the issue, but it is always for the court to say, as matter of- law, whether or not the facts, the existence of which the jury may find, do or do not establish probable cause. Where the facts are uncontroverted, as in this case, the question resolves itself into one of pure law for the court’s determination.

Coming to a consideration of the facts in this case, in connection with these well-established principles of law, the following was shown without conflict: Plaintiff was a mining engineer of high social and professional standing. Visiting California he purchased from the First National Bank of Los Angeles a

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