Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 29 Cal. 644 at 656.
Appeal from the District Court, Fifteenth Judicial District, city and county of San Francisco.
COUNSEL:
The Court erred in holding that the question of want of probable cause is a mixed question of law and fact, to be determined by the Court. The mere statement that there are facts to be determined, when there is a jury, settles by whom they are to be decided. It is as exclusively the province of the jury to find the facts as of the Court to determine the law, and the very authorities cited by the Court in its opinion sustain in the fullest manner the law as stated by the Court in its charge to the jury. The charge was right, and the modesty of the Court has made it admit itself in error, when in fact no error had been committed. An examination of the cases will demonstrate this in the fullest manner. These cases are: Potter v. Seale, 8 Cal. 220; Besson v. Southard, 10 N.Y. 236; Bulkley v. Smith, 2 Duer, 260, and Bulkley v. Kitillas, 2 Seld. 348. These are the cases, and the whole of them, upon which the Courtbelow has decided that " the want of a probable cause is a mixed question of law and fact, to be determined by the Court" --the fact as well as the law--and that " in actions of this nature" the province of the jury is gone. Whether there be conflict in the evidence or not, the Court decides all but the amount of damages. Whether the facts exist that under the law show a want of probable cause is the gist of the whole action. They do, or they do not, and the whole scope and bearing of the cases cited and relied on by the Court below is, that the jury are not only the judges, but the only judges of that plain question of fact. If there is no dispute about their existence or their non-existence, then these cases say that the question becomes entirely one of law for the Court, because there is nothing for the jury to decide. Facts that are undisputed do not need a verdict to settle them. In every case the distinction is kept plainly in view between the cases where there is no conflict in the evidence and those in which there is--and in Potter v. Seale, the Court go on and dispose of the case upon the express grounds (p. 221) that the witnesses are unimpeached, " and there is notthe slightest perceptible conflict between them." The Court add: " It is, then, one of the cases where the circumstances are clearly established; and the only question to determine is, whether these circumstances, in themselves, constitute probable canse."
In the case of Masten v. Deyo, 2 Wend. 427, Mr. Justice Marcy has anticipated the question here. He says: " It is conceded on all hands that the question of probable cause is a mixed question of law and fact; and it would seem necessarily to result that the jury are to say whether the circumstances relied on to show probable cause really existed, and the Court are to decide, if they did exist, whether they constituted probable cause. A Judge, therefore, who should assume the right to determine the whole question, to the exclusion of the jury, would encroach upon their province:"
After stating that in that case, as here, it was contended by the defendant that the Judge and not the jury is to determine the question of probable cause, he proceeds: " It being, as all admit, a mixed question of law and fact, this general denial of the right of the jury to participate in its decision would establish an exception to that great andsalutary principle that lies at the foundation of the right of trial by jury-- ad quoestiones facti, non respondent judices; ad quoestiones legis, non respondent juratores ."
If it was admitted that any such technical rule existed elsewhere as is claimed by the respondents, is there any reason why it should be introduced here? The policy of the law is to keep all its proceedings as simple and uniform as possible. Our Constitution and Practice Act manifestly aimed at the entire separation of the provinces of Court and jury. The former is not even to charge the latter upon questions of fact. If it states the testimony (Pr. Act, sec. 195,) so jealously is the distinction guarded, that it is required at the same time to " inform the jury that they are the exclusive judges of all questions of fact." Where is the authority, and if it existed, where would be the wisdom, in grafting on a judicial amendment to the statute, so that it should read, " except in actions for malicious prosecution, and then the Court shall decide both the law and the fact?"
Edward Tompkins, for Appellant.
D. S. Wilson and S. M. Wilson, for Respondents, argued that the Court erred in leaving the question of probable causefor the prosecution of the attachment suit to the jury; and cited Potter v. Seale, 8 Cal. 220; Bulkley v. Smith, 2 Duer, 272; Besson v. Southard, 10 N.Y. 236; Mums v. Dupont, 1 Am. L. C. 209; and Savage v. Brewer, 16 Pick. 453. They also argued that the proof of the three hundred and thirty-nine dollars due, defeated the action, because there was not only " probable cause," but actual cause of action; and that if plaintiff intended relying on excessive attachment, he should have made that his cause of action, and that it was a necessary fact that the suit must have been ended and determined in favor of the plaintiff; that here it was decided against plaintiff, so far as cause existed at the time of the bringing of the suit; and cited Vanderbilt v. Mathias, 5 Duer, 307; Gorton v. De Angelis, 6 Wend. 420; and Feazle v. Simpson, 1 Scam. 30.
JUDGES: Currey, C. J. Mr. Justice Sanderson expressed no opinion.
OPINION
CURREY, Judge
By the Court, Currey, C. J., on petition for rehearing:
In the petition for a rehearing, the appellants' counsel takes the ground that the report of the referee finding that when Moore commenced his action against Grant and issued the attachment in that suit, there was due from the latter to the former three hundred and thirty-nine dollars and eight cents, was not a finding authorized by the terms of the stipulation. And in support of this, it is said that by the stipulation, dated May 6th, 1864, the parties agreed what the referee should pass upon, and that he was to go on and settle all matters in which they were mutually interested; and the parties agree that the duty of the referee consisted in finding the actual state of the accounts at the time the stipulation was made, and not the state of the accounts at the commencement of the action of Moore against Grant. Be it so; and it then appears that the finding of the state of the accounts between the parties at the date of the stipulation involved an investigation of their condition when the suit of Moore against Grant was commenced. The report of the referee stated in detail the condition of the accounts between the parties to the suit before him, and showed that Grant was indebted to Moore over three hundred dollars when the attachment was issued. The condition of the account at that time was a matter involved in the investigation, and was not open to contradictions on the trial of the suit of Grant against the Moores. If the position of the appellant's counsel, that the referee had nothing to do in determining the issues joined between the parties in the action of Moore against Grant was assumed to be correct, then it would follow as a matter of law that the subject-matter of that action has never been determined, and consequently that the action of Grant against the Moores could not be maintained. Before an action for malicious prosecution can be maintained, it must appear that the action alleged to have been prosecuted maliciously and without probable cause was determined in favor of the party injured by it. ( Gorton v. De Angelis, 6 Wend. 420; Vanderbilt v. Mathis, 5 Duer, 307; McCormick v. Sisson, 7 Cow. 715.)
The stipulation entered into on the 6th of May, 1864, was in effect that the referee should decide all matters in evidence in relation to the accounts between the parties without reference to the pleadings as they then stood, and that the pleadings should be considered as amended so as to cover the whole case, and that judgment should be entered in conformity to the finding of the referee as to the then true state of the accounts between the parties. The issues joined in the case of Moore against Grant had been referred when the parties entered into this stipulation, and by the stipulation, matters which were not embraced in that issue were submitted for the decision of the referee. The subject-matter of the controversy between the parties was thus enlarged, and to that degree changed, and the judgment reported by the referee was different from what it necessarily could have been had the investigation been confined to the matters originally in issue, assuming that the referee found the facts truly. We are inclined to the opinion that the stipulation so changed the issues between the parties as to render the submission to the referee to ascertain what was the true state of the accounts between them at that time and to report a judgment accordingly, an arbitration of and concerning all matters in difference respecting the accounts between the parties up to that date.
The petition for a rehearing must be denied, and it is so ordered.
Mr. Justice Sanderson expressed no opinion.