APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and case remanded for new trial.
Messrs. Stockton & Perry, Mr. E. G. Frazier, Mr. Thomas P. Riordan and Mr. Stanley A. Jerman, for Appellant.
Mr. L. C. McNabb and Mr. W. E. Ryan, for Appellee.
[40 Ariz. 110] LOCKWOOD, J.
Arthur E. Russell, hereinafter called plaintiff, brought suit against Ralph Murphy, hereinafter called defendant, to recover damages for an alleged malicious prosecution. The complaint set up in substance that defendant had maliciously and without probable cause charged that plaintiff was insane, and thereby procured his arrest and imprisonment for about three weeks on an insanity warrant, and that on the hearing of such charge plaintiff was adjudged sane. The case was tried to a jury and judgment rendered upon a verdict in favor of plaintiff in the sum of $4,500, and, after the usual motion for a new trial was overruled, this appeal was prosecuted.
There are some ten assignments of error, several of which contain a number of subdivisions, but we shall consider the case upon the questions of law necessary for its decision rather than on the specific assignments. We think it best, first, to lay down the general rules of law covering actions for malicious prosecution, so far as they are material in
this case, and then to apply them to the facts herein.
We have stated the essential elements of such an action in the case of McDonald v. Atlantic & P. R. Co., 3 Ariz. 96, 21 P. 338, as follows:
"In an action for malicious prosecution, the essential elements upon which it may be based are that there has been made a criminal charge by defendant against the plaintiff; that the charge was made maliciously and without probable cause therefor. If it was malicious, and yet there was probable cause, there can be no recovery. If there was no probable cause, and no malice, there is no action. Whether there was probable cause is a question of law for the court to determine, where the facts are admitted. If the facts are in dispute, the court by its charge should say what facts found by the jury will constitute probable cause. Malice is for the jury. They may find the element of malice from the want [40 Ariz. 111] of probable cause, but not necessarily. The burden is on the plaintiff to prove, by a preponderance of evidence, both malice and a want of probable cause. These principles have been so long and so deeply settled as to be unquestioned."
We could multiply citations in almost unlimited number to sustain the foregoing declaration of principles, but they are so well recognized that it is unnecessary. Let us then apply them to the case at bar.
The court's instructions upon the question of probable cause were as follows:
"Probable cause, as applied to this case, is a belief such as a reasonably prudent and cautious person would under like and similar circumstances entertain, taking into consideration the acts and conduct of the plaintiff. In other words, if the acts and conduct of the plaintiff as disclosed by the evidence in this case were such as to cause a reasonable person situated as the defendant was to believe under all the circumstances that the plaintiff was insane, then the plaintiff cannot recover in this action. . . .
"In determining the question as to whether or not the defendant acted without probable cause in causing the arrest of this plaintiff on an insanity charge, the conduct and acts of the plaintiff in the light and under the circumstances as they appeared to said defendant at the time he made the complaint against the plaintiff should be taken into consideration by you, for the defendant had the right to act in the light of all the circumstances as they appeared to him at the time as a reasonable and prudent person. If you find by a preponderance of the evidence that the defendant acted upon apperances as they occured to him in making the complaint of insanity against the plaintiff, and that said appearances were such that would lead a discreet and prudent person to believe ...