Franzen

This case came here on rehearing after decision by the district court of appeal, second district, first division, the opinion being written in the first instance by Mr. Presiding Justice Conrey. ■ After much consideration of the principal point presented in support of the appeal, we are constrained to hold that the reasoning and the conclusion of Mr. Presiding Justice Conrey clearly and correctly states the law of the case, and therefore we shall adopt his opinion as the opinion of this court. It is as follows:

It will be noted that Mr. Presiding Justice Conrey declares the rule in malicious prosecution cases to be that “.‘although the question of probable cause ... is a question of law, yet the belief of the defendant in a state of facts is itself a fact which it is, proper to submit to the jury for its consideration; and whenever the good faith of the defendant, or his knowledge or belief in an existing state of facts, is an element in determining whether there was probable cause, the court should submit that question to the jury as well as the other facts which, in its opinion, bear upon that issue. ’ ” This rule emanates from and is supported by the following cases: Potter v.…

I dissent upon the grounds and for the reasons stated in the dissenting opinion of the Chief Justice herein. In addition thereto I dissent in toto from the conclusion of the main opinion herein that “good faith is undoubtedly an element of probable cause in malicious prosecution cases.” I do not think that the question of good faith bears any relation to the issue of probable cause. It is in my opinion relevant solely to the issue of malice. To say that the defendant acted in bad faith in filing the charge against the plaintiff is but to say that he acted maliciously in so doing. When a wrongful act is done from a wrongful motive it is done maliciously in the eyes of the law, and it matters not whether that wrongful motive be an express desire to injure the plaintiff or whether it be a wish to gain an undue advantage to the defendant, or whether it spring from sheer wantonness. In either event it is equally wrongful, and in either event it constitutes malice in fact as the same is known to the law. Malice consists in the evil motive, the “modus ammus,” which inspired the act. (Davis v. Hearst, 160 Cal. 143, 164 [ 116 Pac. 530 ]; Griswold v. Griswold, 143 Cal. 617, 620 [ 77 Pac.…

In denying a petition for rehearing we wish it to be understood that we are in agreement upon the rule of law involved in a decision of this case, stated in the main opinion as follows: “ ... If there had been no evidence whatever from which the jury might have inferred that the defendant did not in fact believe that the plaintiff was insane,' the question of his belief should have been determined by the court on the basis of what, under the circumstances, was sufficient to cause a reasonable man to entertain a suspicion of the insanity of the plaintiff. And otherwise, but to the same effect, stated in the dissenting opinion of the Chief Justice as follows: “The rule established by the authorities upon the subject of belief as an element of probable cause would seem to be this: While the question of probable cause is always a question of law for the court and is to be determined by the standard of the ordinary man, yet if there is affirmative evidence of the actual belief of the defendant sufficient to justify a conclusion that he did not in fact suspect the plaintiff of being guilty of the crime with which she was charged, then the question of probable cause to that extent…

I dissent. As the case involves an important question concerning the relative functions of court and jury in eases of malicious prosecution, the grounds of my dissent will be somewhat fully stated, and such statement will involve some repetition of the facts as stated in the main opinion.

The trial court instructed the jury to bring in a verdict in favor of the defendant and the plaintiff appeals from that judgment. The defendant had sworn to an affidavit charging the plaintiff with being insane, that is to say, so far disordered in her mind as to endanger health, person, or property (Pol. Code, sec. 2168). Upon the hearing of the insanity charge the commission came to the conclusion that the plaintiff was not insane and the charge was dismissed by the court.

If the testimony of the defendant is believed, there can be no question about the propriety of the instructed verdict. He testified that the plaintiff, without cause, had threatened to mutilate defendant’s daughters; that he had stated all the facts in the matter to his attorney and was advised by his attorney and also by a deputy district attorney, a justice of the peace, and a constable that in their opinion the plaintiff…