JAFFE v. STONE (1940)

An appeal from a judgment in favor of defendants after the granting of their motions for judgment on the pleadings. The action is one for malicious prosecution, the complaint being based upon the fact that a charge of felony, to-wit, grand theft, had been brought against plaintiff in the justice's court. Defendants' motions for judgment on the pleadings were based upon plaintiff's failure to allege in his complaint herein a final determination of the criminal proceedings in his favor, his only allegation in that regard being that such proceedings were dismissed on motion of the accused upon the ground that there was no testimony or evidence to prove him guilty of the offense charged.

The question involved is whether a complaint for malicious prosecution which alleges merely that a committing magistrate, after a hearing and on motion of the accused, dismissed the felony charge for insufficiency of evidence, states a cause of action without alleging also, directly or by way of averment of facts, that by such dismissal the prosecution was finally terminated. In various jurisdictions different conclusions have been reached upon the question as to what constitutes a final termination.

An analysis of the conflicting opinions discloses that they are mainly influenced by the viewpoint of the particular court as to whether the degrading effect to the individual of a criminal prosecution is of greater importance than the interest of the state in prosecuting persons charged with violating the law. In some states confusion has arisen in the failure to discriminate between malicious prosecution actions based on civil cases and those founded on criminal charges. An abandonment or dismissal of a civil case is somewhat different from a dismissal of a criminal action. Assuming that in either a further prosecution may be had, still the state is more interested in the prosecution of those guilty of criminal offenses than in the maintenance of actions between civil litigants. The prosecution of a civil action is wholly in the hands of the party instituting it, whereas the continuation of a criminal proceeding is directed and determined by a representative of the law enforcement branch of the government. Precise principles have been established based on conclusions reached on this often-debated question, resulting in extremely stringent or slack rules according to the particular legal tenet adopted by the court.

California has adopted the rule that the punishment of crime shall not be hampered by the fear of a citizen that, in bringing a charge against one who he has reasonable ground to believe has committed an offense, he may be sued for damages, if a jury, because of a reasonable doubt, fails to convict, or a legal obstacle presented in the form of objection, motion, demurrer or order of dismissal intervenes to free him. California's stand is well expressed in Ball v. Rawles, 93 Cal. 222, 228, 28 P. 937, 938, 27 Am.St.Rep. 174: “Actions for malicious prosecution have never been favored in law, although they have always been readily upheld when the proper elements therefor have been presented. They are sustained, however, only when it is shown that the prosecution was in fact actuated by malice, and that the party instigating it had no reasonable ground for causing the prosecution. It is for the best interests of society that those who offend against the laws shall be promptly punished, and that any citizen who has good reason to believe that the law has been violated shall have the right to cause the arrest of the offender. For the purpose of protecting him in so doing, it is the established rule if he have reasonable grounds for his belief, and act thereon in good faith, in causing the arrest, he shall not be subjected to damages merely because the accused is not convicted. This rule is founded upon grounds of public policy, in order to encourage the exposure of crime *.” Paskle v. Williams, 214 Cal. 482, 6 P.2d 505; Perry v. Washington Nat. Ins. Co., 14 Cal.App.2d 609, 58 P.2d 701, 59 P.2d 158; Haydel v. Morton, 8 Cal.App.2d 730, 48 P.2d 709; D'Alessandro v. Pickford, 22 Cal.App.2d 239, 70 P.2d 646; Dunlap v. New Zealand F. & M.I. Co., 109 Cal. 365, 42 P. 29; Garfield v. Peoples Fin. & Thrift Co., 24 Cal.App.2d 144, 74 P.2d 1061; Richter v. Neilson, 11 Cal.App.2d 503, 54 P.2d 54. In Griswold v. Griswold, 143 Cal. 617, 622, 77 P. 672, 674, the court said: “It is the policy of the law to encourage prosecutions when there are facts and circumstances that would induce the belief in the mind of a reasonably cautious man of the guilt of the party accused. And so in case a party is insane and dangerous to be at large. It would not do to hold honest parties in heavy damages for an error of judgment. If so, it would be difficult to get responsible parties to make complaints.”

In consonance with this rule, California has laid down four essentials to justify the bringing of an action for malicious prosecution, namely, the institution of the proceeding complained of, malice, want of probable cause and the final determination of the proceeding so that it is not susceptible of revival. The last requirement, namely, final termination, is as essential as the other three. In White v. Brinkman, 23 Cal.App.2d 307, 318, 73 P.2d 254, 259, the court said: “In an action grounded on malicious prosecution not only must the complaint allege that the prosecution was with malice and without probable cause, but it is equally essential that there be an adequate averment of final termination of the proceeding in favor of the plaintiff. A complaint deficient in that particular is amenable to a general demurrer.” Monk v. Ehret, 192 Cal. 186, 219 P. 452; Holliday v. Holliday, 123 Cal. 26, 55 P. 703; Roos v. Harris, 203 Cal. 201, 263 P. 225; Dowdell v. Carpy, 129 Cal. 168, 61 P. 948; Carpenter v. Nutter, 127 Cal. 61, 59 P. 301.

In Wilson v. Troy, 19 Cal.App.2d 156, 64 P.2d 1141, the complaint alleged malice, the want of probable cause, the dismissal of the criminal cause and that the proceedings against plaintiff had been “terminated”. In the instant case, the complaint is substantially in the language used in Wilson v. Troy, except that the pleader herein did not state that the proceedings had “terminated”, but relied upon the allegation of the dismissal of the proceedings and the discharge of the plaintiff. An action for malicious prosecution should not be brought until the prosecution upon which it is based is terminated. A dismissal of proceedings before a committing magistrate does not preclude the institution of further proceedings before the same tribunal or an indictment by a grand jury. In malicious prosecution actions based upon preliminary hearings in criminal actions, some confusion has arisen as a result of the use of the terms “a dismissal of proceedings”, “a dismissal of the charge”, and “discharge of the prisoner”. The word “dismissal” ordinarily has reference to the removal of a cause out of court before judgment on the merits. People v. Latham, 53 Cal. 386. “* an order for the dismissal of the action is not a bar if the offense is a felony”. Pen.Code, sec. 1387. The word “discharged” as used in the present proceeding merely means that the accused is released from custody and his bail exonerated. Pen.Code, secs. 871 and 1117. There is not necessarily an adjudication that an offense against the law has not been committed. Neither word carries with it the idea of “finally ended”. “Terminated” implies permanent complete disposition of the action. 62 C.J. p. 732. To this extent there was more merit in the appeal in Wilson v. Troy than in the instant case.

In deciding the point involved it is my opinion that we must follow the California rule. Practically the identical question (with the exception that there was also involved the point whether or not the accused in a criminal proceeding “was tried”), was the subject of determination in Wilson v. Troy, supra, where, at page 158 of 19 Cal.App.2d, at page 1142 of 64 P.2d, the court said: “That such dismissal terminates proceedings on the specific indictment or information will be conceded. But, if under the order made, a new indictment or information may be filed, the order does not terminate the proceedings. True it is that the plaintiff alleges said action terminated, but that does not meet the rule. He should have alleged facts showing that it had finally terminated.” In White v. Brinkman, supra, the court said, at page 317 of 23 Cal.App.2d, at page 259 of 73 P.2d: “But one of the essentials of artful pleading of such cause is an averment of termination of the prosecution in favor of the accused in such manner as not to be legally susceptible of revival. Plaintiff does not allege in terms in his complaint that the prosecution was finally terminated in his favor.” In Roos v. Harris, supra, an accused, found guilty of petit larceny, as it was then termed, subsequently filed a complaint in the superior court for malicious prosecution. It was not alleged that the conviction was appealed or reversed upon appeal. An order granting a motion for judgment on the pleadings was affirmed because the finality of the criminal proceeding had not been alleged. In Holliday v. Holliday, supra, at page 32 of 123 Cal., at page 704 of 55 P., the court said: “* where a justice sits as a committing magistrate with power merely to discharge a defendant or to hold him to answer for trial before a higher tribunal, the order made by the magistrate in such cases, lacking the essentials of a final judgment, is not held conclusive upon the question of probable cause. At the most it is but prima facie evidence.” In the Holliday case the court also held that when the complaint in a malicious prosecution action alleges that the principal prosecution is “wholly ended”, it is sufficient. In the instant case, the complaint simply alleges that the motion to dismiss the complaint and charge was granted. No allegation appears that the proceeding was “wholly” or “finally” ended.

[8, 9] Appellant in his closing brief states: “We freely admit that the discharge we have alleged as a termination of the proceeding was not a bar to a new proceeding against the defendant. The point is a new proceeding must be instituted.” But it was incumbent upon appellant to plead that a new proceeding was not instituted; that is, that the disposition of the criminal case had been finally determined without legal possibility of revival. The point to emphasize is that while the dismissal of the complaint, and the discharge of the accused, may have been and undoubtedly constituted a proper and a legal order, it was not final in that it did not legally bar a further prosecution for the same offense.

The weakness of appellant's contention is demonstrated by reference to certain cases, some of which were affirmed on appeal. Attention is directed to the fact that in those wherein plaintiff recovered judgment as the result of the action of the committing magistrate, not one was reversed for failure to allege or prove termination of the original proceeding. That point, which is the crux of the instant appeal, is not even mentioned in the cases cited; and hence those cases are not authority here. Black's Law of Judicial Precedents, p. 47, sec. 10; 21 C.J.S., Courts, p. 299, § 186; 7 Cal.Jur. p. 641, sec. 46.

Disregarding, as authority for the case at bar, Wilson v. Troy, supra, and a series of decisions of the District Courts of Appeal which are enlightening relative to the rule followed in this state, we may rest its decision upon Supreme Court opinions on this question as expressed in Fetterley v. Gibson, 210 Cal. 282, 291 P. 411; Paskle v. Williams, supra; Carpenter v. Nutter, supra; Crews v. Mayo, 165 Cal. 493, 132 P. 1032; Ex parte Fenton, 77 Cal. 183, 19 P. 267; Roos v. Harris, supra; Holliday v. Holliday, supra; Dowdell v. Carpy, supra; Monk v. Ehret, supra; Anderson v. Coleman, 56 Cal. 124; Kellogg v. Cochran, 87 Cal. 192, 25 P. 677, 12 L.R.A. 104; Carter v. Paige, 80 Cal. 390, 22 P. 188; Berson v. Ewing, 84 Cal. 89, 23 P. 1112; Hibbing v. Hyde, 50 Cal. 206.

People v. Bomar, 73 Cal.App. 372, 238 P. 758, cited by appellant, merely decides that when a magistrate holds a defendant to answer for a public offense, he exhausts his power and jurisdiction. Nothing therein may be construed as indicating that when the committing magistrate dismisses the charge he may not reacquire jurisdiction to hear and determine the question of the sufficiency of the evidence to hold the defendant to answer upon a complaint subsequently filed within the statutory period. I do not find anything stated in Wood v. Lehne, 30 Cal.App.2d 222, 85 P.2d 910, cited by appellant, inconsistent with the views expressed herein. The question under discussion in Harrington v. Tibbet, 143 Cal. 78, 76 P. 816, was whether a defendant in a malicious prosecution action could base his defense upon the fact that the criminal complaint failed to state a public offense. Nor does the case of Hurgren v. Union Mutual Life Ins. Co., 1904, 141 Cal. 585, 75 P. 168, lend any more than a suggestion of authority to appellant's contention. That was a malicious prosecution action for alleged institution of certain civil suits in which a nonsuit had been granted. At page 587 of 141 Cal., at page 168 of 75 P., the court said: “.* it is now the well-established rule that a verdict or final determination upon the merits of the malicious civil suit or criminal prosecution complained of is not necessary to the maintenance of an action for malicious prosecution, but that it is sufficient to show that the former proceeding had been legally terminated. The fact that such legal termination would not be a bar to another civil suit or criminal prosecution founded on the same alleged cause is no defense to the action for malicious prosecution *.” It may be noted that the action was one for prosecution of civil suits, and the statement therein in reference to a criminal prosecution was not necessary to the decision. At page 589 of 141 Cal., at page 169 of 75 P., the court said: “There are no decisions of this court to the contrary.” This statement is incorrect.

In Carpenter v. Nutter, supra, decided five years earlier (1899), at page 63 of 127 Cal., at page 302 of 59 P., the court said: “In actions for malicious prosecution, it must be alleged that the prosecution is at an end, either by alleging that defendant was acquitted of the charge, or by alleging facts showing the legal termination of the prosecution complained of, in favor of defendant, prior to the commencement of the action. 1 Chit.Pl. 680; Newell, Mal. Pros., p. 327, sec. 1; Holliday v. Holliday, 123 Cal. [26] 31, 55 P. 703; Hibbing v. Hyde, 50 Cal. 206.” It was further stated in the Carpenter case that it must “appear by direct averment, or by a statement of facts which show the necessary legal conclusion, that the prosecution has finally ended and terminated in favor of plaintiff”. The conclusion reached in Carpenter v. Nutter was followed with approval in Plum v. Becket, 1932, 120 Cal.App. 507, 7 P.2d 1111, in Donati v. Righetti, 1908, 9 Cal.App. 45, 97 P. 1128, and in Wilson v. Troy, supra.

There seems to be some inconsistency in the language used in the Hurgren and Carpenter opinions. To follow the Hurgren case without an analysis thereof would mean that every other case upon this subject in California must be disapproved. In Wilson v. Troy, appellant, citing both of these cases, but relying specifically upon the language used in the Hurgren case, petitioned for a hearing before the Supreme Court. The petition was denied. It is interesting to note that the courts of appellate jurisdiction in this state seldom cite the Hurgren case, and then merely quote its language, in accord with the Nutter case, to the effect that “It is not necessary to show that it was tried on its merits, but there must be a showing that it has gone beyond the power of the plaintiff to continue it.” Crews v. Mayo, supra, 165 Cal. at page 495, 132 P. at page 1033. See, also, Merron v. Title Guarantee, etc., Co., 11 Cal.App.2d 565, 54 P.2d 61; Merron v. Title Guarantee, etc., Co., 27 Cal.App.2d 119, 80 P.2d 740.

In Crews v. Mayo, supra, 1913, 165 Cal. at pages 495, 496, 132 P. at page 1033, the court said: “It is not necessary to show that it [the suit] was tried on its merits, but there must be a showing that it has gone beyond the power of the plaintiff to continue it. Hurgren v. Union Mutual Life Ins. Co., 141 Cal. [585] 587, 75 P. 168. * In Carpenter v. Nutter, 127 Cal. 61, 59 P. 301, it was decided that in an action for damages on account of malicious prosecution it must be shown that the prosecution had terminated, and the mere discharge of the defendant in that prosecution would not be sufficient.” Andrews v. Young, 1937, 21 Cal.App.2d 523, 69 P.2d 891; Dowdell v. Carpy, supra, 1900.

Whether the matter be referred to as “wholly”, “legally” or “finally” determined, California has adopted the rule that an essential averment in a complaint for malicious prosecution is that the proceedings upon which it is based have terminated in favor of the accused, in a form that renders the order or judgment final, without the possibility of legal revival. Those familiar with proceedings before committing magistrates know full well that many complaints are dismissed upon technicalities of law, involving, for instance, jurisdiction, the disappearance of necessary witnesses, to save the reputation of the complainant, particularly should she be a woman, to obviate the embarrassment of publicity to the relatives of an accused if the interests of justice will not suffer too much thereby, and for other reasons that need not be mentioned. If it were possible for an accused, by the prompt filing of a malicious prosecution action, to intimidate and coerce a complainant to such a degree as to result in a discontinuance of the criminal proceeding, the state might be precluded from a proper enforcement of the law, whereas any injury resulting to the accused would only be by way of a delay until allegations in a malicious prosecution complaint could be conscientiously made that the criminal action was wholly, completely, legally and finally ended.

The statute of limitations in the filing of a malicious prosecution complaint does not begin to run until the termination of the proceedings upon which they are based. Berson v. Ewing, supra. It is seldom necessary to await the running of the statute, but, assuming that it is impossible to show final determination until the end of the statutory period, that hardship upon the accused would not outweigh the injustice of permitting him to file a malicious prosecution action and intimidate a complainant so that he would refuse to assist further in the prosecution of a crime. In dealing with a civil matter the court, in the Berson case, 84 Cal. at pages 92, 93, 23 P. at page 1113, said: “One of the essential facts to the maintenance of an action of the kind before us is, as above stated, that the malicious suit terminated in favor of the party against whom it was prosecuted. Were this not so, the plaintiff might recover for the malicious suit, and still have judgment rendered against him in such suit.”

In the instant case an additional reason may be given why the motion for judgment on the pleadings was properly granted. In some jurisdictions a distinction is made between an action dismissed on behalf of the prosecution and one obtained through the direct effort of the accused. 18 R.C.L. p. 23, sec. 12. This rule was recognized by the supreme court of this state in Holliday v. Holliday, supra, where at page 35 of 123 Cal., at page 705 of 55 P., the court said: “It is, of course, true that the dismissal of a charge at the procurement of the accused cannot be construed as such a final determination of the matter in her favor as to support an action for malicious prosecution.” The complaint in the present case alleges that the order to dismiss the criminal action was made in response to a motion by the accused. The language used by the supreme court in the Holliday case was a sufficient justification for the trial court herein to order judgment for the defendant upon the pleadings.

In a complaint for malicious prosecution, the true test of final determination as applied to a preliminary hearing, depending upon the facts in each case, should be an averment that the statute of limitations, as regards further prosecution of the criminal offense, has expired, or that the complainant has abandoned the prosecution of the charge, or that the preliminary hearing proceeding has been dismissed and that a reasonable time has elapsed within which to institute a revival thereof, or an averment of facts from which the necessary legal conclusion follows that the prosecution has finally ended and terminated in favor of the accused. The facts alleged in the instant complaint are insufficient. A dismissal in a preliminary hearing is not necessarily a final termination.

California having established its policy of encouraging the exposure of crime by shielding from liability a complaining witness in a criminal proceeding, unless, in an action for malicious prosecution, there be an averment of the four essentials heretofore set forth, including an adequate averment of final termination of the proceeding in favor of the accused, it is my opinion that the conception of the law as enunciated by the highest appellate court of this state must be followed. The “juristic philosophy” of the judges of the Supreme Court may not be rejected. Their adjudication of a question of law may not only be followed with propriety, but must be accepted as final.

The judgment is affirmed.

I agree with Mr. Justice WARD that the judgment should be affirmed. As stated by him, the appeal was taken by plaintiff from a judgment on the pleadings. The single question to be decided is, therefore, solely one of pleading; namely, does the complaint allege all of the elements essential to constitute a cause of action for malicious prosecution. In this regard it is well settled that in order to state such a cause of action the complaint must allege the institution of the proceeding complained of, malice, want of probable cause, “and the final termination of the proceedings in favor of the plaintiff” (16 Cal.Jur. p. 744); and particularly, as to the latter element, the complaint must allege “that the prosecution is at an end, either by alleging that defendant was acquitted of the charge, or by alleging facts showing the legal termination of the prosecution complained of, in favor of the defendant, prior to the commencement of the action.” Carpenter v. Nutter, 127 Cal. 61, 59 P. 301, 302, citing 1 Chitty on Pleading, 680; Newell on Malicious Prosecution, sec. 1, p. 327; Holliday v. Holliday, 123 Cal. 26, 31, 55 P. 703; Hibbing v. Hyde, 50 Cal. 206; Wilson v. Troy, 19 Cal.App.2d 156, 64 P.2d 1141. Such appears to be the prevailing rule of pleading in all jurisdictions. 18 R.C.L. 68. The obvious reason for the rule is that until the complaining party has shown that there has been a final termination in his favor of the prosecution about which he is complaining, it cannot be logically held that such prosecution was instituted without probable cause. In other words, if he were permitted to sue before he had won the first suit he might secure a recovery for the bringing of an action which the court entertaining such cause found to be well brought. 18 R.C.L. 22.

Here the complaint failed to meet the requirements of the foregoing mandatory rule of pleading, in that there is an absence of any appropriate allegation, direct or by way of averments of facts, showing that prior to the commencement of the action the criminal prosecution about which plaintiff complains was finally terminated or brought to an end. The complaint does allege that after preliminary hearing and pursuant to plaintiff's motion based on the ground that there was no testimony or evidence to prove him guilty of the charge, the magistrate dismissed the proceeding and discharged the plaintiff; but such a dismissal does not necessarily end the prosecution of a charge, nor of itself constitute a final termination thereof, for under statutory provisions, and decisions of long standing construing them, there may be a continuation of the prosecution by recharging the accused with the same offense before the same or another magistrate, and thereafter he may be legally held to answer and found guilty in the superior court; or he may be subsequently indicted by the grand jury for said offense and thus placed on trial and found guilty. That such future course is open is not disputed. In fact, plaintiff in his closing brief states: “We freely admit that the discharge we have alleged as a termination of the proceeding was not a bar to a new proceeding against the defendant.” Therefore, bearing in mind the elementary rules that a pleading must be construed most strongly against the pleader and that courts are not permitted to indulge in an assumption of the existence of essential facts which the law requires a plaintiff to plead, it is quite evident that the trial court was justified in holding that without the essential affirmative allegation above mentioned the complaint herein failed to state a cause of action. White v. Brinkman, 23 Cal.App.2d 307, 73 P.2d 254; Wilson v. Troy, supra; Carpenter v. Nutter, supra.

It has been suggested that if, following the dismissal by the magistrate, any subsequent proceedings were invoked for the continuation of the prosecution, it would be a matter of defense for the defendants to plead in their answer. But it is a well-recognized requirement in all jurisdictions that before a plaintiff may maintain an action of this kind he “must allege and prove” the final termination in his favor of the prosecution he alleges has been malicious and without probable cause (18 R.C.L. p. 21); and manifestly, to allow a plaintiff to proceed to trial upon a complaint which by timely objection thereto is shown to be fatally defective in its statement of a cause of action would be violative not only of the rights of the defendant but also of a common and well-established rule of practice (Carpenter v. Nutter, supra); and especially would this be true where, as here, the action sought to be maintained is one upon which the law looks with disfavor.

In disposing of a like situation in Carpenter v. Nutter, supra, wherein also the plaintiff failed to comply with the rule of pleading requiring an allegation of the final termination of the prosecution, the court said: “If it had been alleged that the information was dismissed by the court, the facts would have to be alleged in such manner as to show that the dismissal was an end of the prosecution. It is an elementary rule that the allegations of a pleading will be most strongly construed against the pleader. In no case can the court, in face of a demurrer, presume any facts to exist except such as are stated in the complaint. If the plaintiff in this case was in fact discharged by an order of the superior court of San Joaquin county, and the order was such as to end and finally determine the prosecutions under the informations, he could have so alleged in his complaint. He has not done so under the law as we understand it.” And so here, if in fact no subsequent proceedings were had against plaintiff following his dismissal by the magistrate, he could have so alleged in the complaint; or having failed so to do he could have asked leave to amend at the time the fatal defect was pointed out on motion for judgment on the pleadings; but no claim is made that such leave was requested. And even though, as seems to be held in some cases from other states, the omission of the element causing the fatal defect in the complaint might be supplied by the answer, the plaintiff herein would be in no better position because the allegations of the answer herein do not touch upon that issue.

In all jurisdictions it is well recognized that under certain circumstances the dismissal by a magistrate of a felony charge for insufficiency of evidence will constitute a final termination of the prosecution sufficient to enable a party to institute an action for malicious prosecution. One of the most common types of this class of cases is where it appears from the allegations of the complaint that the dismissal has been brought about by the voluntary abandonment of the charge by the complainant, or is granted at his request. 18 R.C.L. p. 23. The case of Brown v. Randall, 36 Conn. 56, 4 Am.Rep. 35, serves as an apt illustration of the application of the foregoing doctrine. However, this is not such a case, for here it is affirmatively alleged in the complaint that the dismissal was granted pursuant to a motion made in that behalf by plaintiff. Then, again, there is that class of cases where, following a dismissal by a magistrate on motion of the accused, the complainant for an unreasonable length of time makes no effort to continue the prosecution of the charge. Where such facts appear it may be deemed that there has been an abandonment of the charge by the complainant, and therefore that the dismissal constitutes a final termination of the prosecution sufficient to entitle the accused to institute an action for malicious prosecution without being compelled to await the running of the statute of limitations against the crime he was charged with having committed. Hartshorne v. Smith, 104 Ga. 235, 30 S.E. 666; Schippel v. Norton, 38 Kan. 567, 16 P. 804. As said in the former case [104 Ga. 235, 30 S.E. 667]: “It is probably true, if, upon the dismissal of the warrant and the discharge of the accused by the magistrate, the prosecutor had abandoned a further prosecution of the accused, or had delayed the same for such an unreasonable time as to lead the accused to believe that he had discontinued the prosecution, the action would lie”; and further on the court said: “As before stated, if a criminal prosecution has been dismissed with no intention of commencing it again, or if delay has been made in commencing the prosecution again, so as to lead the accused to believe that it had been finally terminated, and if he had then and at once commenced his action for a malicious prosecution, he might probably maintain the same.” Language almost identical with the foregoing was used also in deciding the case of Schippel v. Norton, supra. But manifestly in this latter class of cases, as in all others, a plaintiff is not relieved of the duty of complying with the universal mandatory rule of pleading requiring him to allege facts from which it is made to appear that there has been a final termination of the prosecution; and for aught the complaint here shows, subsequent proceedings for the continuation of the prosecution may have been instituted after the dismissal by the magistrate, and were in fact pending at the time of the filing of the complaint herein.

As pointed out by Mr. Justice WARD, there is no substantial difference between the present case and the cases of Carpenter v. Nutter, supra, White v. Brinkman, supra, and Wilson v. Troy, supra, except it would seem that here the complaint was more defective than those under consideration there; whereas, on the other hand, the case before us is easily distinguishable from Holliday v. Holliday, 123 Cal. 26, 55 P. 703, for there, in addition to the allegation that the accused was discharged from custody, the complaint went on to allege in terms that “said prosecution is wholly ended and determined”, which fairly imports that no further proceedings whatever were had.

The plaintiff relies chiefly upon the case of Hurgren v. Union Mutual Life Ins. Co., 141 Cal. 585, 75 P. 168, but in my judgment the decision therein on the particular point there presented cannot be said to be contrary to the rule hereinabove adverted to, by which the present case must be controlled. The case arose out of the filing and dismissal by the defendant therein of three civil suits, and the determinative issue involved a matter of proof and not a rule of pleading. As shown by the opinion therein, the precise question the court was called upon to decide was whether the trial court was in error in holding as it did, in granting a nonsuit, that an action for malicious prosecution could not be maintained until there had been a determination on the merits of the action complained of as being malicious. After stating the issue the court explained that the trial court's view was first sustained by a department decision, but that upon further consideration the court in bank had reached a different conclusion, which was stated in the following language: “* it is now the well-established rule that a verdict or final determination upon the merits of the malicious civil suit or criminal prosecution complained of is not necessary to the maintenance of an action for malicious prosecution, but that it is sufficient to show that the former proceeding had been legally terminated.” In reaching such conclusion the court alluded to and quoted from four or five cases from other states; and in closing its discussion the court said: “There are many other decisions to the same effect, but the foregoing are sufficient to cite here in support of a principle which we deem to be well founded in reason. There are no decisions of this court to the contrary.” But obviously the “principle” thus referred to was the principle that it was not essential in order to maintain an action for malicious prosecution that the action claimed to be malicious be first “determined upon the merits”; and it would appear that the decisions from other states from which the court quoted were invoked only by way of argument in support of the conclusion reached by the court on the precise question then before it. Here, however, that principle of law is in no way involved, nor has anyone challenged its soundness. Quite to the contrary, all parties concede that such is the law of this state. To repeat, the question here is one of pleading; and further analysis of the decision in the Hurgren case discloses that the complaint there conformed to the rule of pleading restated and applied in the three principal cases above mentioned. To quote from the opinion itself: “It is averred in the complaint * that plaintiff refused to receive the [life insurance] policy or to pay the $103.40 [premium thereon, on the ground that he had not applied for such a policy]; that afterwards defendant brought suit against plaintiff, in a justice's court in Santa Rosa township, county of Sonoma, to recover said last-named sum of money, and that, after plaintiff had appeared in said action, the defendant (plaintiff there) dismissed it; that afterwards defendant brought another similar action in said justice's court; that plaintiff appeared to defend, and that on the day fixed for hearing the cause defendant failed to appear, and the action was dismissed; that afterwards defendant brought a third similar action in the justice's court of the city and county of San Francisco; that the plaintiff again appeared and attended court on the day fixed for trial, and that before that time defendant had dismissed the action.” Continuing, the court said: “These averments—under the views above expressed—state a sufficient legal ending of the suits; and, as to the dismissals, the averments are beyond question sustained by the evidence.” Thus it will be seen that the complaint there fully complied with the mandatory rule of pleading with which we are here concerned by pleading facts which of themselves were legally sufficient to warrant the court in holding as a matter of law that there had been such a legal ending of the actions claimed to be malicious, namely, an abandonment thereof by the complainant, on three separate occasions, as to justify the filing of the suit for malicious prosecution. Construed, therefore, in the light of the issues there presented and determined, the decision in that case cannot be said to be out of harmony with the doctrine of any of the cases hereinbefore referred to, but to the contrary would seem to be in accord therewith.

It is true that some of the foreign cases quoted from in the Hurgren decision would appear to state a rule implying that instantly upon the dismissal of a charge by a magistrate on motion of the accused for any reason whatever, including defective complaint or insufficiency of evidence, the accused is entitled to file suit and secure a judgment thereon for malicious prosecution, despite the fact that the complainant or the prosecuting officer may continue the prosecution of the identical charge by way of filing a new complaint or indictment by the grand jury. Thus in Casebeer v. Drahoble, 13 Neb. 465, 14 N.W. 397, in a two-page opinion and without setting forth the allegations of the complaint, the court said: “We think the allegations of the petition sufficient as to the termination of the alleged malicious prosecutions. While there is a conflict of authorities, the weight of authority, as well as of reason, is in favor of the position that the right of action is complete whenever ‘the particular prosecution be disposed of in such a manner that this cannot be revived, and the prosecutor, if he proceeds further, will be put to a new one.’ ” (Italics ours.) And in seeking the aid of those cases plaintiff contends that the term “particular prosecution” as there used should be construed to mean the “particular proceeding” then pending against the accused, and that therefore instantly upon the dismissal by a magistrate of an accused on his motion as the result of a preliminary examination “the right of action is complete” upon which the accused may file suit and recover a judgment, regardless of the fact that subsequently and within a reasonable time the complainant or the prosecutor may initiate further proceedings against the accused on the identical charge by filing a new complaint or securing a grand jury indictment. Such, however, is not the universal rule, for cases are to be found in various jurisdictions wherein after such dismissal by the magistrate further prosecution of the identical charge has been initiated by filing a new complaint or securing a grand jury indictment; and in such cases it has been held that pending the determination of the newly initiated proceeding an action for malicious prosecution cannot be maintained. Among the cases so holding is Hartshorne v. Smith, supra. The pertinent part of the decision therein reads as follows:

“It is contended by the defendant in error that his discharge by the magistrate upon the preliminary hearing under the warrant sworn out by the plaintiff in error, was such a termination of the prosecution as that the action to recover damages for a malicious prosecution would lie. In this view, however, under the facts of this case, we cannot concur. It is probably true, if, upon the dismissal of the warrant and the discharge of the accused by the magistrate, the prosecutor had abandoned a further prosecution of the accused, or had delayed the same for such an unreasonable time as to lead the accused to believe that he had discontinued the prosecution, the action would lie. But in the present case it appears that on the 24th day of June, 1893, the prosecutor swore out the warrant against the accused; that on July 8, 1893, the magistrate, after hearing evidence, discharged the accused; and that at the September term, 1893, a Floyd superior court (which was the first sitting of that court after the hearing before the magistrate), the prosecutor, following up the prosecution against the accused, procured the indictment against him, by the grand jury, for the same offense with which he was charged in the warrant previously sworn out. This action on the part of the prosecutor negatived any intention on his part to discontinue the prosecution, and showed that he, with due diligence, was following up and continuing the original prosecution in a court having jurisdiction to try the case upon its merits.” Schippel v. Norton, supra [38 Kan. 567, 16 P. 806], is another case of the same kind, the court there saying: “If the criminal prosecution in the present case had been dismissed, with no intention of commencing it again in the district court or elsewhere, or if the delay had been made in commencing the criminal prosecution again, so as to lead the plaintiff to believe that the criminal prosecution had been finally terminated, and if he had then, and at once, commenced his action for malicious prosecution, he might probably maintain the same. But in all reason he should not be allowed to maintain such an action when substantially the same criminal prosecution as the one upon which he founds his action is still in the courts undisposed of.” In short, as stated in Newell on Malicious Prosecution, at page 343, “Preliminary examinations of persons charged with violations of the criminal law before magistrates are sometimes terminated by dismissals. In these cases the question as to whether the dismissal is a sufficient termination of the prosecutions or suits complained of as malicious must depend largely upon the circumstances of each particular case.” Similar language was used in Apgar v. Woolston, 43 N.J.L. 57 (one of the cases cited in the Hurgren decision), the court there saying: “* the rule is universal that no action can be maintained unless the prosecution has terminated in favor of the plaintiff, and that an action for a malicious prosecution is prematurely brought if it be commenced before the criminal prosecution is finally ended. The cases are uniform on that subject. But there is considerable diversity of views with regard to the nature of the decision or determination which shall be considered a final termination of the prosecution. In some cases it has been held that nothing short of a final acquittal will be sufficient; in other cases it has been held that a nolle prosequi by the prosecuting officer will be a sufficient discharge; in others, not.” After all, it would seem from an examination of the various cases upon the subject that the most that can be said for the rule stated in Casebeer v. Drahoble, supra, is that it means simply, as held in the Hurgren case, that a determination on the merits of the action complained of is not essential to the filing of an action for malicious prosecution. In any event, it is quite clear that the court in the Hurgren case had no intention of abrogating, overruling or narrowing the decision in Carpenter v. Nutter, supra, because although that case was decided only five years prior thereto, it is nowhere cited in the Hurgren decision; moreover, as pointed out by Mr. Justice WARD, the Carpenter case has since been cited and followed on numerous occasions.

Some apprehension has been expressed that the effect of continuing the doctrine of the three principal California cases hereinabove mentioned will be to open the door to the filing and dismissal by an individual of successive groundless criminal prosecutions against an innocent person without subjecting the complainant to civil liability. But this suggestion overlooks the fact that under the law of this state criminal prosecutions are under the direction, administration and control of duly constituted authorities, and it cannot be presumed that any such abuses would be tolerated, much less authorized.

With respect to the numerous cases in this state wherein judgments for the plaintiff have been affirmed in actions brought after discharge by a committing magistrate or other termination prior to trial on the merits, it would seem sufficient to say that it does not appear from any of them that the question of pleading was raised therein; consequently, in the absence of anything in the opinions showing to the contrary it must be presumed that the complaints therein conformed to the mandatory rule of pleading which the plaintiff here failed to observe. Nor is the case of Harrington v. Tibbet, 143 Cal. 78, 76 P. 816, 817, upon which plaintiff also strongly relies, helpful to him, for there, as shown by the opinion, the complaint alleged, among other things, that after causing the arrest of the plaintiff therein, the complainant “failed to appear or prosecute the said charge * and the proceeding was finally dismissed, and plaintiff discharged from custody”. (Italics ours.)

As stated in the beginning, I join with Mr. Justice WARD in the affirmance of the judgment.

I dissent from the conclusions reached by both of my associates.

First, as to the opinion prepared by Mr. Justice WARD. It holds that a dismissal of a felony charge by a committing magistrate on the ground that the prosecution failed to offer prima facie proof of the accused's guilt, is not a sufficient termination of the criminal proceeding to found an action for malicious prosecution, even though the criminal proceeding was admittedly instituted with malice and without probable cause. Such a rule cannot be supported by reason or logic, or upon any principle of justice or fair play.

This opinion is predicated upon the premise, frankly stated, that malicious prosecution actions are not favored in this state. Based on this premise, a strained unnatural construction is adopted in order to defeat the cause of action. The basic premise of this formula states the rule too broadly. The courts should, and do, indulge in every reasonable intendment in favor of one who brings a criminal charge against another, in order that punishment of crime shall not be hampered by fear of a citizen that in bringing a criminal charge he may be subjecting himself to civil liability. That is a sound and salutary rule. In determining whether the accuser acted without malice and with probable cause, every reasonable intendment should be indulged in his favor. Stated another way, until malice and lack of probable cause are clearly shown, malicious prosecution actions are not favored in the law. But where it is shown that the prosecution was actuated by malice, and that no reasonable or probable ground existed for the instigation of the prosecution, then the court should be jealous in protecting the reputation and rights of the accused. The very cases cited by Mr. Justice WARD, and particularly the cases of Ball v. Rawles, 93 Cal. 222, 28 P. 937, 27 Am.St.Rep. 174, and Griswold v. Griswold, 143 Cal. 617, 77 P. 672, quoted from in his opinion, demonstrate that this is the proper rule. The courts should not permit a person who is actuated by malice and who acts without probable cause to use the judicial processes so as to ruin the reputation of another, and then grant him immunity from civil liability for the supposed reason that the dictates of public policy require that actions for malicious prosecution should be discouraged. It is just as much a part of the public policy of this state to protect the reputations and credit of its citizens, and to see that their reputations and credit are not attacked maliciously and without probable cause, as it is to see that persons who act without malice and with probable cause shall be protected in bringing criminal prosecutions. The true rule in my opinion, is that, until malice and lack of probable cause are clearly shown, malicious prosecution actions are not favored, but where these elements are shown to exist the courts should be jealous in protecting the rights of the person unjustly and maliciously accused.

Applying this rule of construction to the facts presented on this appeal, there can be no doubt, in my opinion, that the rule stated by Mr. Justice WARD is unsound. Malice and lack of probable cause are alleged in the complaint. This being an appeal from a judgment on the pleadings, for the purposes of this appeal we must conclusively presume that the criminal prosecution was instigated by defendants with malice and without probable cause. The case, so far as the pleadings disclose, is one where the defendants, with malice and without probable cause, by agreement among themselves, caused a complaint to be filed charging plaintiff with the theft of wine of the value of $6,875. Plaintiff was arrested by reason thereof. At the preliminary hearing the defendants were unable to produce even a prima facie case against plaintiff, and the proceeding was dismissed, and plaintiff discharged from custody. The opinion prepared by Mr. Justice WARD holds that, even though such a dismissal was a final determination of the proceedings pending before the committing magistrate, it was not a sufficient final determination to found an action for malicious prosecution, because another complaint could be filed based on the same charges. To constitute a final determination of the criminal proceeding, according to this opinion, the criminal case must be finally determined without legal possibility of revival. That apparently means either that there must be an acquittal on the merits at the trial of the criminal charge, or the statute of limitations must have run on such charge. If that be the rule then the accuser whose conduct is the most reprehensible from a moral standpoint is favored over the accuser whose conduct is less reprehensible. To illustrate: If “A” maliciously and without probable cause accuses “B” of a felony, and his proof is so flimsy that it does not convince the committing magistrate, who dismisses on the ground that the complainant has failed to offer even prima facie proof of the accused's guilt (which is exactly the instant case), then, under the rule stated by Mr. Justice WARD, “A” cannot be held civilly liable in a malicious prosecution action because there is a possibility that another new complaint could be filed based on the same facts. But if “A” produces some evidence before the committing magistrate—sufficient evidence so that the accused is held to answer—and then in the superior court, “B”, on conflicting evidence, is acquitted, “A” may properly institute an action for malicious prosecution, if the other requisite elements are present. It seems clear to me that the obvious result of the rule announced by Mr. Justice WARD is to deny a remedy to the accused in those cases where the criminal charge was least justified, and most harmful. Obviously, it is in just such cases, where the evidence is insufficient to warrant holding the accused, that the action is most likely to have been brought without probable cause and with malice.

Another result of the rule announced in this opinion is that one actuated by malice and acting without probable cause may bring successive accusations against an innocent man, and have them dismissed, and be immune from civil liability. The damage is done when the accused is charged and arrested. His subsequent dismissal for lack of evidence does not remedy this damage.

The only justification for the rule announced by Mr. Justice WARD, given in the few cases which have adopted that rule, is that, unless there is a termination which will preclude the possibility of a new action based on the same facts, the accused, after recovery of a judgment in the malicious prosecution suit, might be held guilty of the crime involved in the criminal prosecution. This argument has not been overlooked in those cases adopting the rule advocated in this dissent. It is well-settled that, where a new proceeding is in fact instituted with diligence, an action for malicious prosecution of the first action may not be maintained (the cases are collected in 38 Cor.Jur. p. 443, sec. 93). This qualification of the rule that a discharge by the committing magistrate on the ground of insufficiency of the evidence affords a basis for the malicious prosecution action, affords a sufficient protection against the possibility of conflicting decisions.

Although it must be conceded that there is some authority in other states to support the rule announced in Mr. Justice WARD'S opinion, in most of the cases the pronouncement was dictum. Text writers, the legal encyclopedias, and other legal writers are all agreed that the overwhelming weight of authority, and the soundest legal arguments, support the views advocated in this dissent. Newell on Malicious Prosecution, p. 349, sec. 16; 38 Cor.Jur. p. 442, sec. 92 et seq.; 14 Harv.Law Review, p. 223. In 18 Ruling Case Law, page 23, section 12, the rule is stated as follows: “Some authorities apparently take the view that where the action complained of was a criminal prosecution, nothing less than an acquittal will be a sufficient showing of a successful termination for the plaintiff to support an action for malicious prosecution, but such expressions are believed to be mostly dicta. To require a trial of the action on the merits resulting in an acquittal would be to permit a prosecutor to do all the damage which a malicious prosecution can possibly effect, and then deny the accused the opportunity to vindicate himself by a trial, by having the proceeding quashed or dismissed, and thus escaping all liability for the wrong unlawfully inflicted. So, as a general rule, all that is required is that there be an end to the particular proceeding. That the party can again be brought into court for the same alleged offense will not matter if in order to do this it will be necessary to start afresh. The weight of authority in this country is apparently to the effect that the entry of a nolle prosequi without the procurement or consent of the defendant is such a termination of a proceeding as will support an action for malicious prosecution, though in England and in some of the states the contrary view obtains. In any event it would seem that a nolle prosequi is sufficient if followed by a discharge by the court, and the accused has had no hand in bringing this about. It has also frequently been held that there is a sufficient termination where the action is abandoned either by the prosecuting attorney or the complaining witness. Abandonment of the prosecution with formal discharge of the accused makes a still stronger case. So the discharge of the accused in a criminal proceeding by the committing magistrate has been declared to end the prosecution favorably for him.”

The many cases cited to support the above text, and cited by Newell and in Corpus Juris, all hold that there is a final determination of the criminal prosecution when the committing magistrate dismisses for lack of evidence. The basis of this holding is that upon such dismissal that proceeding is forever and finally terminated. Upon such dismissal the committing magistrate has completely exhausted his jurisdiction and power. See People v. Bomar, 73 Cal.App. 372, 238 P. 758. After such dismissal the committing magistrate cannot revive that proceeding or reacquire jurisdiction over it. While a new complaint may be filed based on the same facts, that is a new proceeding and not a revival of the old one.

Mr. Justice WARD recognizes that there is a conflict in authority on this question, but adopts the narrow, and what I consider to be the unfair, rule on the theory that prior decisions of the District Courts of Appeal and of the Supreme Court compel this conclusion. The rule of stare decisis is one of policy, and is inherently sound. There can be no doubt that if it were a fact that the Supreme Court had clearly adopted the rule announced by him, that this court would be legally bound to follow the rule so announced. But where there is a conflict in the decisions of the Supreme Court, this court is free to adopt that conclusion which to it seems sound and reasonable.

What is the status of the California decisions on this question? Apparently the first case discussing the problem is Carpenter v. Nutter, 127 Cal. 61, 59 P. 301, 302. In that case the accused was held to answer, and then, according to the complaint, “he was discharged from custody and the informations dismissed by Hon. Joseph H. Budd, judge of the said superior court”. The trial court sustained a demurrer. The Supreme Court affirmed this ruling. The opinion is not clear as to whether it is based on the theory that the allegations in reference to the trial judge's authority to dismiss were deficient, or whether the allegations concerning the final determination were deficient. It is probable, however, that one of the grounds of the decision was that a dismissal by the superior court is not a sufficient basis for a malicious prosecution action. It must also be conceded, so far as the face of the opinion discloses, however, that the court did not consider nor discuss the arguments heretofore mentioned supporting the majority rule. The decision was written by Cooper, a court commissioner, and concurred in by two other court commissioners. Three justices of the court, constituting one department, adopted the opinion. A hearing in bank was denied.

Some five years later the Supreme Court in bank (in Hurgren v. Union Mutual Life Ins. Co., 141 Cal. 585, 75 P. 168) again considered the problem. This was an appeal from a judgment of nonsuit in an action for the malicious prosecution of certain civil suits. The trial court granted the nonsuit on the theory that to found the action there must be a determination of the prior action on its merits—exactly the contention of respondent in the instant case. This view was sustained by a decision of the Supreme Court in department, but a hearing in bank was granted, and on such hearing, the court unanimously repudiated the department decision. The court considered the problem at some length and came to the conclusion that the weight of authority, logic and reason supported the rule that a final determination on the merits of the prior prosecution or civil suit was not necessary to constitute a legal or final determination of the prior action to serve as a basis for the malicious prosecution suit. Among other things, the court stated (141 Cal. at page 587, 75 P. at page 168):

“The learned judge of the trial court granted the nonsuit upon the ground that it had not been shown that the former suits complained of as malicious had been determined upon the merits in favor of the defendant therein, and this view was sustained when the appeal was decided here in department. But upon further consideration of the question we are satisfied that, whatever may have been some of the former decisions in England and this country, it is now the well-established rule that a verdict or final determination upon the merits of the malicious civil suit or criminal prosecution complained of is not necessary to the maintenance of an action for malicious prosecution, but that it is sufficient to show that the former proceeding had been legally terminated. The fact that such legal termination would not be a bar to another civil suit or criminal prosecution founded on the same alleged cause is no defense to the action for malicious prosecution; otherwise a party might be continuously harassed by one suit after another, each dismissed before any opportunity for a trial on the merits. It is suggested that the plaintiff might commence the suit upon a perfectly good cause of action, and for some legal reason dismiss it, and afterwards bring and successfully prosecute to judgment a second suit; while in the meantime the defendant might have brought and maintained an action for the malicious prosecution founded upon the first action. If such an improbable thing could be imagined, the law would not thereby be changed. But it must be remembered that plaintiff in the action for malicious prosecution must show affirmatively, not only that the action complained of had been terminated, but that it was commenced maliciously, and without probable cause; which could not well be done in the case suggested. The many cases cited in 19 American & English Encyclopedia of Law, p. 681, fully sustain the text, which correctly states the law on the subject, and is as follows: ‘It is not easy to lay down in a few words any general rule that would satisfactorily state when proceedings may be regarded as terminated for the purposes of an action of malicious prosecution. It may be briefly said, however, that a prosecution may be regarded as terminated when it has been disposed of in such a manner that it cannot be revived, so that the prosecutor, if he intends to proceed further, must institute proceedings de novo.’ We will refer briefly to a few of the many cases to the point (the italics are ours): In Clark v. Cleveland, 6 Hill (N.Y.) 344, the court, speaking through Cowen, J., say: ‘Nor can it be essentially necessary that there should be an adjudication of the magistrate, or, indeed, any judicial decision upon the merits by any court. * The technical prerequisite is only that the particular prosecution be disposed of in such a manner that it cannot be revived, and the prosecutor must be put to a new one. * The mere discontinuance of a civil suit in any way satisfies the rule.’ In Apgar v. Woolston, 43 N.J.L. 57, the court declare (we quote from the syllabus, which correctly states the decision) as follows: ‘The law requires only that the particular prosecution complained of shall have been terminated, and not that the liability of the plaintiff for prosecution for the same offense shall have been extinguished, before the action for malicious prosecution is brought. Consequently, the refusal of the grand jury to file an indictment, a nolle prosequi, or any proceeding by which the particular prosecution is disposed of in such a manner that it cannot be revived, and that the prosecutor, if he intends to proceed further, must institute proceedings de novo, is a sufficient termination of the prosecution to enable the plaintiff to bring his action.’ In Casebeer v. Drahoble, 13 Neb. 465, 14 N.W. 397, the court say: ‘The weight of authority, as well as of reason, is in favor of the position that the right of action is complete whenever the particular prosecution be disposed of in such manner that this cannot be revived, and the prosecutor, if he proceeds further, will be put to a new one.’ In Casebeer v. Rice, 18 Neb. 203, 24 N.W. 693, a criminal charge had been made by defendants against plaintiff before a county judge, and ‘such proceedings were had as resulted in a dismissal of the cause and the discharge of the accused by reason of the failure of the prosecution to give security for costs,’ and this was held to be such a determination of the proceeding as to warrant the action for malicious prosecution; the court restating the language used in Casebeer v. Drahoble. In Lytton v. Baird, 95 Ind. 349, the court held that an order quashing an indictment and discharging the defendant was a sufficient termination of the prosecution to warrant an action for malicious prosecution. In Brown v. Randall, 36 Conn. 56, 4 Am.Rep. 35, the court held as follows: ‘It is not necessary, to sustain an action for malicious prosecution, that the defendant should be acquitted in the criminal proceeding. It is sufficient that the defendant was discharged without a trial, by a withdrawal or abandonment of the prosecution, not made at his request or by arrangement with him, if the jury should find on the whole evidence that there was want of probable cause.’ There are many other decisions to the same effect, but the foregoing are sufficient to cite here in support of a principle which we deem to be well founded in reason.”

It is true that the court did not mention its prior decision in the Nutter case, supra, and in fact stated: “There are no decisions of this court to the contrary.” 141 Cal. at page 589, 75 P. at page 169. But the fact remains that the Hurgren case is the only case in California where the problem has received exhaustive and careful consideration.

The next case where the problem was discussed is Wilson v. Troy, 19 Cal.App.2d 156, 64 P.2d 1141—the case that the trial court in the instant case, with considerable reluctance felt bound to follow, and upon the authority of which the judgment on the pleadings was granted. The complaint in that action charged defendants with filing a complaint charging plaintiff with burglary. In connection with the termination of that charge the complaint alleged (19 Cal.App.2d at page 157, 64 P.2d at page 1141): “That plaintiff was tried on said charge; and, on the 13th day of May, 1935, the said criminal prosecution of plaintiff terminated in plaintiff's favor and said charge of burglary was, thereupon, dismissed; that on said date the criminal proceedings against plaintiff terminated.”

Relying on the Nutter case, supra, and without any reference to the Hurgren case, supra, and adopting a strict rule of construction of the pleadings—a rule, it might be added, out of line with the many recent decisions holding that in the absence of a special demurrer pleadings should be liberally construed to the end that causes may be tried on their merits—the appellate court held the allegation insufficient. A reading of the opinion demonstrates that the court did not consider nor discuss the convincing arguments presented in the Hurgren case.

In White v. Brinkman, 23 Cal.App.2d 307, at page 317, 73 P.2d 254, the court makes the statement quoted in Mr. Justice WARD'S opinion that a termination beyond the possibility of revival is essential. But no cases are cited and no discussion is had concerning the basis or theory of the rule.

In Mr. Justice WARD'S opinion some fifteen Supreme Court cases are cited, starting with Fetterley v. Gibson, 210 Cal. 282, 291 P. 411, and ending with Hibbing v. Hyde, 50 Cal. 206, which, it is implied, sustain the views therein announced. The only one of the fifteen cases cited that at all discusses the point here involved is the Nutter case, supra, which has already been discussed. None of the other fourteen cases is in point. Most of them hold that before a malicious prosecution action may be properly instituted, there must be a termination of the prior civil or criminal action. That rule is fundamental and is not challenged in this dissent. The question here involved is what constitutes such a termination. Not one of the fourteen cases cited is in point on this issue. Most of the cases cited are where the plaintiff in the malicious prosecution suit was found guilty in the prior action, or was found insane, or the prior civil action was still pending. Such cases are obviously not in point, and their holdings have no application to this appeal.

We are thus faced with a situation where one Supreme Court department case and two Appellate Court cases have adopted the narrow, technical, and what I consider essentially unfair inequitable rule, accepted by the majority opinion. In none of these three cases was the problem discussed at length, nor were the convincing arguments advanced in support of the majority rule considered or discussed. As opposed to these cases, there is one Supreme Court case—the only one considered by the court in bank on its merits—where the court, after a full and complete consideration of the problem and of the arguments on both sides, adopted the rule adopted by the majority of other states.

In addition to the Hurgren case, supra, it should be added that there are at least seventeen cases in California where judgments in favor of plaintiffs in malicious prosecution actions were affirmed on appeal, and where, from the face of the opinions, it appears that so far as the legal determination of the criminal prosecutions were concerned, such legal determinations were based upon dismissals of felony charges by committing magistrates. These cases are: Russell v. Dennison, 45 Cal. 337; Williams v. Casebeer, 126 Cal. 77, 58 P. 380; Murphy v. Davids, 181 Cal. 706, 186 P. 143; Burke v. Watts, 188 Cal. 118, 204 P. 578; Fleischhauer v. Fabens, 8 Cal.App. 30, 96 P. 17; Auener v. Norman, 39 Cal.App. 425, 179 P. 219; Braga v. Ponte, 50 Cal.App. 94, 194 P. 514; Krauskopf v. Brooking, 59 Cal.App. 683, 211 P. 469; Pickering v. Havens, 70 Cal.App. 381, 233 P. 346; Robinson v. McKnight, 103 Cal.App. 718, 284 P. 1056; Green v. Stewart, 106 Cal.App. 518, 289 P. 940; Gooding v. McAlister, 114 Cal.App. 284, 299 P. 774; Mills v. Friedman, 119 Cal.App. 74, 5 P.2d 901; Carroll v. Pacific Coast Auto Ass'n, Inc., 123 Cal.App. 568, 11 P.2d 660; Diggs v. Arnold Bros., Inc., 132 Cal.App. 518, 23 P.2d 71; Davidson v. De Sousa, 20 Cal.App.2d 311, 66 P.2d 740; Wood v. Lehne, 30 Cal.App.2d 222, 85 P.2d 910.

While it is true that in none of these seventeen cases did the courts discuss the sufficiency of the termination of the criminal prosecution, nevertheless the effect of Mr. Justice WARD'S opinion is to necessarily hold that these seventeen cases were incorrectly decided, and that the able lawyers and judges—trial, appellate and Supreme—that handled and considered these cases, overlooked an obvious point, that had it been raised would have caused reversals. Certainly, in view of the clear-cut holding in the Hurgren case, supra, and of the negative holding in the above seventeen cases, we can at least say there is a conflict in the opinions of the higher courts of this state. Since that is so, this court is free to adopt what it considers to be the soundest and most equitable rule. If I am sound in this conclusion, and I believe I am, then I believe that reasonable minds cannot differ on which rule should be adopted in this state.

I also disagree with the concurring opinion of Mr. Justice KNIGHT. He takes the position that a dismissal of the criminal case by a committing magistrate may or may not constitute a final determination sufficient to found the action of malicious prosecution, dependent on the facts of each case. Thus, he concedes that, if it had been alleged that the dismissal constituted a “final determination”, or that after the dismissal of the criminal charge the complainant had abandoned the prosecution, or that an unreasonable length of time had elapsed after such dismissal without the institution of a new prosecution, then the complaint in the malicious prosecution action would be sufficient. Such a proposition can be supported by neither reason nor authority. Such a rule would violate fundamental rules of pleading. To require the plaintiff to plead the conclusion that the dismissal constituted a “final determination” of the criminal prosecution would be to require him to plead a conclusion of law. Under our system of pleading the plaintiff is required to plead “the facts constituting the cause of action, in ordinary and concise language”. Sec. 426, Code Civ.Proc. He is not required or permitted, except in certain types of cases of which this is not one, to plead conclusions of law. Here the plaintiff has pleaded that the criminal prosecution was dismissed by the committing magistrate, and that he was discharged from custody. Those are the facts. Either a dismissal by a committing magistrate is or is not a sufficient termination of the criminal proceeding to found the malicious prosecution action. There is no middle ground. If it is not, it is because as held by Mr. Justice WARD, a dismissal by a committing magistrate, as a matter of law, is an insufficient determination of the criminal prosecution. The inherent unsoundness of that rule has already been discussed. If such facts are sufficient to found the action, as held by the overwhelming weight of authority elsewhere, it is because the dismissal of the criminal prosecution by the committing magistrate, as a matter of law, is a final determination. As already pointed out, the overwhelming weight of authority is to the effect that a dismissal by a committing magistrate is a final determination of that proceeding. If a new prosecution based on the same facts is instituted, that is not a revival or continuation of the prosecution that has been dismissed,—that prosecution has been finally terminated—it is the institution of a new prosecution. The concurring opinion holds that the institution of the new prosecution is a “continuation” of the old prosecution. That is the same misconception that appears in Mr. Justice WARD'S opinion. The new prosecution is neither a revival nor a continuation of the old prosecution—that prosecution has finally terminated. It is a new prosecution.

The fundamental fallacy of the concurring opinion, as I see it, is that it confuses facts which would constitute a defense with the facts constituting plaintiff's cause of action. If, after the dismissal of the criminal prosecution by the committing magistrate, a new prosecution is seasonably instituted based on the same facts, that would clearly be a defense to the malicious prosecution suit. That is all that was held in Hartshorne v. Smith, 104 Ga. 235, 30 S.E. 666, and Schippel v. Norton, 38 Kan. 567, 16 P. 804, so strongly relied upon in the concurring opinion. But the plaintiff in the malicious prosecution suit is not required to anticipate that defense. He is not required to plead that no such new prosecution in fact has not been instituted. To make such a requirement would be to compel him to anticipate a defense in violation of fundamental rules of pleading.

The concurring opinion concedes that several of the foreign cases cited and quoted from with approval in the Hurgren case establish the rule that the cause of action for malicious prosecution is complete upon the dismissal of the criminal prosecution by the committing magistrate. But the concurring opinion states, in effect, that, by quoting from the portions of those cases establishing that rule, the court did not mean to approve or adopt that rule in this state. The reason given for this conclusion is that the court did not cite the department decision of five years before—the Carpenter case, supra. This is clearly a non sequitur. A fair reading of the Hurgren case demonstrates that the court meant to, and did, adopt the rule that upon dismissal by a committing magistrate the cause of action for malicious prosecution is complete. No other conclusion is reasonably possible.

It is my view that the rules advocated by my associates are inherently unsound and unfair, and should not be adopted in this state.

WARD, Justice.