SARWARK MOTOR SALES, INC., a Corporation, and Dan O'Meara, Appellants,
Alfred WOOLRIDGE, Appellee.
[88 Ariz. 175] Scott, Cavness & Yankee, Phoenix, for appellants.
Eugene C. Simon, and Stephen W. Connors, Phoenix, for appellee.
Appellants Sarwark Motor Sales, Inc. (hereinafter called 'Sarwark') and Dan O'Meara (hereinafter called 'O'Meara') appeal from a judgment of the Superior Court of Maricopa County, entered upon a jury verdict, awarding Alfred Woolridge (hereinafter called 'plaintiff') actual damages in the sum of $250 and punitive damages in the sum of $5,000, and from an order denying appellants' motions for judgment notwithstanding the verdict and for a new trial. Plaintiff's complaint set forth one cause of action sounding in malicious prosecution and false imprisonment.
The record shows that on October 13, 1955 plaintiff visited the used car lot owned by Sarwark for the purpose of buying a used automobile. Forrest E. Jackson, a salesman for Sarwark, waited on plaintiff and showed him a convertible automobile, which plaintiff drove out of the lot. Plaintiff testified that Jackson had given him permission to test drive the convertible; Jackson denied that he had given such permission. Shortly thereafter, Jackson reported to O'Meara, vice-president and general manager of Sarwark, that the car was missing. O'Meara checked with the other salesmen, all of whom denied having given permission to plaintiff to remove the car. O'Meara then called the police and singed a stolen car report which led to the [88 Ariz. 176] arrest, trial and subsequent acquittal of plaintiff.
The evidence shows that prior to his arrest, plaintiff had voluntarily returned the car to the Sarwark lot. There was also testimony that another employee of Sarwark told O'Meara, either the next day or a week later, than he recalled hearing Jackson give plaintiff permission to test drive the convertible. There was substantial conflict in the evidence as to the events that led to the arrest of plaintiff, and thereafter, and especially the part played by O'Meara. The details of the evidence need not be set forth further, in view of our decision that a new trial is necessary.
Appellants assign as error the instructions of the court relating to the element of probable cause. Their position, in sum, is that the court erroneously instructed the jury to determine the existence of probable cause, which is a question of law for the court.
The elements of a cause of action for malicious prosecution are described in Prosser, Law of Torts, § 98 (2d ed.), as follows:
'a. A criminal proceeding instituted or continued by the defendant against the plaintiff.
'b. Termination of the proceeding in favor of the accused.
'c. Absence of probable cause for the proceeding.
'd. 'Malice,' or a primary purpose in instituting the proceeding other than that of bringing an offender to justice.'
See also 1 Harper and James, Law of Torts, § 4.1; Restatement of Torts, § 653.
Thus, 'absence' or 'want of probable cause' is a separate element of a cause of action for malicious prosecution. As stated in McClinton v. Rice, 76 Ariz. 358, 366, 265 P.2d 425, 430, the question is, did the plaintiff 'show want of probable cause, one of the essentials of malicious prosecution?' Probable cause was there defined as 'a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing the accused is guilty of the offense' (76 Ariz. at page 367, 265 P.2d at page 431). See also, Griswold v. Horne, 19 Ariz. 56, 165 P. 618, L.R.A.1918A, 862; Cunningham v. Moreno, 9 Ariz. 300, 80 P. 327.
With respect to the point here in issue, the Court in McClinton v. Rice, supra, stated:
'What facts are sufficient to constitute probable cause is a question of law.' 76 Ariz. at page 367, 265 P.2d at page 431.
The precise roles played by the court and jury in resolving this question of law as to probable cause were clearly set forth in this Court's opinion in Murphy v. Russell,40 ...