LENNON, J.
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:
“This is an action to recover damages for the malicious prosecution of a proceeding wherein, by affidavit filed by the defendant before a justice of the peace, the plaintiff was charged with being an insane person. Upon hearing of said charge after plaintiff’s arrest, the proceeding was dismissed. At the trial of the present action the; court instructed the jury to render its verdict in favor of the defendant. From the judgment upon verdict in accordance with that instruction the plaintiff appeals.
“The motion for a directed verdict was sustained by the court upon the stated grounds that there were sufficient facts uncontroverted to establish that there was probable cause at the time of the filing of the affidavit to warrant any reasonable person in filing an insanity complaint; and that, in filing the affidavit, the defendant was acting upon the advice of counsel after said counsel had been fully informed of all the material facts. Respondent contends that the court was right upon both of these propositions.
“It is admitted that certain business relations had existed between plaintiff and defendant for two or three years prior to November 30, 1920, the date of said affidavit. The plaintiff further claims, and the defendant denies, that there had been illicit relations between them. The defendant is married and has two children. It appears that several months before November, 1920, the defendant canceled a mortgage indebtedness then owing to him by the plaintiff, and gave her nine hundred dollars, without receiving any consideration therefor. Whether this was a gift, as the plaintiff contends, or whether it was, as the defendant con
tends, a forced contribution of a blackmailing nature, it is not for us to decide. It does appear that in November there existed some kind of very serious trouble between these parties. The defendant testified that on the night of November 29th the plaintiff had demanded money from him and told him that if he did not comply with this demand ‘she would get my children and mutilate them so I would never want to look at them again in my life, and she would get my wife.’ Being asked if he considered that she was insane at that time, defendant replied: ‘She made these repeated threats, and I could not see how a person—I would say she was insane or unbalanced at times.’ Being asked if he ever knew her to have any insane delusions, he replied: ‘Only her threats to damage my children.’ Mr. Ault, who was the defendant’s attorney, testified that on the 30th day of November the plaintiff came to his office and appeared to be very much excited and wrought up; that, among other things, she said that on the night before the defendant had thrown her out of his office and beat her up, and that she was going to get even with him; that she was going to disfigure the defendant’s children’s faces until he could point to them until his dying day and know that Mabel Franzen put it there; that she would moan and cry and walk the floor, cursing the defendant and making these threats. Mr. Ault testified that he then went down to Mr. Shenk’s office, where Mr. Shenk made to him a statement of the events of the night before and of numerous other circumstances concerning defendant’s relations with the plaintiff; that the witness Ault told the defendant what the plaintiff had said to him, and the threats which she had made. Mr. Bitler, a deputy district attorney, held conversations during the same day, both with Mr. Ault and with the defendant. They both advised the defendant that there was reason to believe the plaintiff insane, and advised him to make the affidavit charging her with being an insane person. The justice of the peace after discussion of the matter with the defendant, gave him the same advice.
“The plaintiff testified that she did not state to the defendant that she would mar or mutilate his children in any way, or do any violence to them, or make in substance any statement of that kind, either to him or to anyone else. She
testified that she never asked the defendant for money, and that what money he gave her he gave voluntarily.
“Without repeating the testimony in further detail enough has been stated to show the nature of the situation existing between the plaintiff and the defendant at that time on the plaintiff’s theory of the case and, alternatively, on the defendant’s theory of the case. There is manifestly a conflict in the evidence relating to the facts from which the existence or want of probable cause for the prosecution of the insanity proceeding must be determined. If in truth the plaintiff had not said to the defendant that she would disfigure the defendant’s children and injure his wife, his testimony that she had made such threats to him would be false, and this would have a tendency to destroy the effect of the evidence of his good faith in making the affidavit charging insanity of the plaintiff. From this it would follow that the testimony of Mr. Ault that the plaintiff had made the stated threats in his office, and that he had repeated them to the defendant (when taken in connection with the other testimony to which we have referred, including the plaintiff’s testimony), was not sufficient to justify the court in determining for itself the truth concerning that testimony without submitting the issue to the jury for decision. And if the ‘advice of counsel,’ or of the justice of the peace, was in part based upon a false statement of fact by the defendant, then the advice so given, and followed by the action taken by him pursuant to that advice, does not constitute a defense to this action.
“In an action for malicious prosecution of a criminal charge the rule concerning the determination of the question of probable cause has been stated as follows: ‘While it is not necessary to show that the crime has in fact been committed, it is necessary to show, not only that the defendant had reasonable ground to believe, but that he did in fact believe, that the crime had been committed, and that the plaintiff had committed the crime. Although the question of probable cause, as we have seen above, 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.’
(Ball
v.
Bowles,
93 Cal. 222, 234 [27 Am. St. Rep. 174, 28 Pac. 937].)
“ The principle thus disclosed is equally applicable to an action to recover damages for malicious prosecution of an insanity charge. It may be that in this case the jury would have believed the defendant’s testimony, and would have disbelieved the plaintiff’s denial that she had threatened to mar or disfigure the faces of the defendant’s children, or to injure his wife. And for the purposes of the present question we assume, without deciding, that the making of such threats Avould have a tendency to justify belief that the person making such threats was of unsound mind. Bpt it was for the jury, and not for the judge, to determine these facts, which upon the evidence were not admitted and were not undisputed. The defendant testified that when he gave money and canceled the mortgage of plaintiff, in May, 1920, he did it ‘to get rid of the annoyance and worry.’ If that motive, rather than a genuine belief in the plaintiff’s insanity, was the sole cause of his action in filing the. affidavit and causing her to be arrested on a charge of insanity, then he was not legally justified in so proceeding. We are not intimating any opinion that he was so influenced. Neither are we concerned with the fact, that upon her own showing that plaintiff had been sustaining illicit relations with the defendant, or that, according to some of defendant’s witnesses, she had been guilty of such relations with other men. These facts, such as they may be, might affect the amount of a just award of damages for her loss of reputation, or on account of the ‘humiliation, shame and mortification’ suffered by her if she was wronged by the defendant in the matter of this insanity charge. But in any event, she was entitled to have the facts determined by the jury, to which, by law, the issue should have been submitted. ’ ’
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.
Seale,
8 Cal.
217; Harkrader
v.
Moore,
44 Cal. 144;
Eastin
v.
Stockton Bank,
66
Cal. 123
[56 Am. Rep. 77, 4 Pac.
1106]; Fulton
v.
Onesti,
66 Cal. 575 [6 Pac. 491] ;
Dawson
v.
Schloss,
93 Cal. 194 [29 Pac. 31] ;
Ball
v.
Rawles,
93 Cal. 222 [27 Am. St. Rep. 174, 28 Pac. 937]
; Sandell
v.
Sherman,
107 Cal. 391 [40 Pac. 493] ;
Booraem
v.
Potter Hotel Co.,
154 Cal. 99 [97 Pac. 65];
Runo
v.
Williams,
162 Cal. 444 [122 Pac. 1082];
Fleischhauer
v.
Fabens,
8 Cal. App. 30 [96 Pac. 17];
Montz
v.
Nevins,
40 Cal. App. 202 [180 Pac. 537] ;
Burke
v.
Watts,
188 Cal. 118 [204 Pac. 578] ;
Stein
v.
Lacassie,
189 Cal. 118 [207 Pac. 886]. The rule recited by Mr. Presiding Justice Conrey is, however, subject to the qualification which the foregoing authorities declare and generally agree, in substance and effect, to be that if there is no dispute concerning the existence of the facts relied upon to show probable cause, the trial court must then determine as a matter of law whether such undisputed facts do or do not warrant an inference of probable cause. On the other hand, it is undoubtedly the rule that when the evidence bearing upon the question of probable cause is in conflict in any essential particular it is the province of the jury to determine whether or not facts exist which will warrant or reject an inference of probable cause. In short, to the extent that there is any dispute as to the existence of facts which may constitute the basis of a finding for or against probable cause such dispute must be submitted to the jury for its determination. (Newell on Malicious Prosecution, sec. 9, p. 14.)
Good faith is undoubtedly an element of probable cause in malicious prosecution eases, and an actual and honest belief in the guilt of the plaintiff is obviously an integral part of good faith. The. actual belief of the defendant in the instant ease in the insanity of the plaintiff, based upon all of the facts within his knowledge must, therefore, of necessity have been an element of probable cause. In other words, “the belief of the defendant in the
guilt of the plaintiff, or which is the same thing, in the truth of the charge made against that person in the prosecution complained of, is a material element in probable cause” and where “that belief is in issue, what such belief was is a question of fact for the jury to determine.” This is declared to be the rule in a very carefully prepared note to
Simmons
v.
Gardner,
L. R. A. 1915D, 79, which reviews all of the authorities on the subject, including many of those cited and referred to herein.
But even if the proposition that the honest belief of a prosecutor in the guilt of the defendant were not declared by numerous authorities, both ancient and modern, to be an element of probable cause, it would seem to be so upon principle for, as was said in the reasoned and seasoned case of
Broad
v.
Ham,
decided in 1839 and reported in 132 English Reprints, 1278, “It would be a monstrous proposition, that a party who did not believe the guilt of the accused, should be said to have reasonable and probable cause for making the charge.” The rule in this behalf is stated in
Fleishhauer
v.
Fabens, supra,
where it is held, in effect, that the good faith of the defendant is an essential element in the defense of probable cause; and that even though a defendant shows reasonable grounds of suspicion, sufficiently strong in themselves as to warrant a cautious man in the belief that there was probable cause for the prosecution, nevertheless if it be apparent that he did not himself believe in the guilt of the accused, then the circumstances upon which he relied will not suffice to shield and vindicate him.
Good faith is an independent element of probable cause which is not limited solely to a defendant’s defense that he had probable cause. “The law requires,” says Newell, in his work on Malicious Prosecution, page 325, section 11, “that one in instituting a criminal prosecution shall act in good faith, or under an honest belief of the guilt of the party arrested; and this notwithstanding he has taken legal advice.” That this declaration of the rule was not intended by the author to be limited solely to the question of good faith as an element of the affirmative defense of “advice of counsel” is manifested by the very language in which the rule stated is embodied which declares the necessity of “honest belief of the guilt of the party arrested,” notwith
standing that the prosecutor may have taken legal advice. This conclusion is fortified by the fact that the caption of the text which deals with the rule declares that there shall be “good faith independent of legal advice.” In
Roy
v.
Goings,
112 Ill. 656, which was cited to support the rule enunciated in Newell, there was involved the correctness of an instruction, which, it was contended “required too much in saying that appellant must have acted in good faith in starting the prosecution, after having obtained the opinion of the state’s attorney—that his advice should protect a party commencing such a proceeding, without reference to good faith.” The court held the instruction to be correct, saying, in the course of its opinion, “The law in all cases requires good faith, or, rather, a belief that the accused is guilty of the crime charged. The person claiming the accused is guilty, may know or believe he is not, although the attorney may suppose he is.” To the same effect is the case of
Vann
v.
McCreary,
77 Cal. 434 [19 Pac. 826], wherein it was held that the advice of counsel for the commencement of a prosecution is no defense to an action for malicious prosecution if it appears that the defendant did not believe that the accused was guilty. The case last quoted from was cited with approval in the comparatively recent case of
Murphy
v.
Davids,
181 Cal. 706 [186 Pac. 143], where it was said, in effect, that the defendants therein did not have probable cause for the prosecution there complained of because “knowing, as they did, that no crime had really been committed” they could not have depended upon the advice of counsel. The court then proceeded to hold that “whether or not defendants acted
bona fide
upon counsel’s advice is a question for the jury.
(Potter
v.
Seale,
8 Cal. 217.) Advice of counsel is no defense if the person who pretends that he acted upon it did not believe the accused was guilty.” So, therefore, it would seem to be the settled rule that if it appears anywhere during the trial of the ease, whether in the
prima facie
case made by the plaintiff or in the course of the presentation of the defendant’s affirmative defense of probable cause, that the defendant did not actually believe in the guilt of the person charged with crime, then that fact is an essential element to be considered in the determina
tion of the question of whether or not the defendant had probable cause.
Conceding that the quotation from Newell was directed to the question of good faith as an element in the affirmative defense of advice of counsel, nevertheless the rule declared therein has application to the situation presented in the case at bar for the reason that, as the record before us shows, the trial of the case had proceeded to a point where the plaintiff and defendant had completed their respective cases upon all the issues, including that of probable cause, raised and expressly tendered by the answer of the defendant, which pleaded as well the “honest belief by the defendant” that the plaintiff was insane.
Incidentally it should be noted that in keeping with the code rule that evidence in support of an issue must be adduced by a party holding the affirmative and that, therefore, the burden of proof rests upon the party who would be denied relief if no evidence were given on either side (Code Civ. Proc., sec. 1981;
Carpenter
v.
Ashley,
15 Cal. App. 461 [115 Pac. 268]), it was incumbent upon the plaintiff in this ease to assume the burden of showing affirmatively the negative fact of want of probable cause in the defendant at the time he caused her arrest. At the conclusion of the plaintiff’s case, it was then the privilege of the defendant to interpose the affirmative defense of probable cause, if he deemed it necessary to do so. The instant case had proceeded beyond the point of a nonsuit and presumably, therefore, the plaintiff had made out a
prima facie
case. The defendant was sworn and testified as a witness for the plaintiff in her case in chief and he also took the witness-stand and testified in his own behalf, and in so doing evidently supplied whatever deficiency may have been in the plaintiff’s case concerning his belief in the insanity of the plaintiff at the time he instituted the prosecution of her upon the charge of insanity. It will thus be noted that in the case at bar no question arises as to where the burden of proof rests in the first instance, and the only question involved is as to when the issue as to the existence of facts bearing upon the question of probable cause must be submitted to the jury for its determination. Of course, in keeping with the rule above stated, 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.
There is, however, in the record before us sufficient evidence to have justified the jury in finding, had the question been submitted to it, that the defendant did not in fact believe that the plaintiff was insane when he swore to the affidavit charging her with insanity. Thus there is the denial of the plaintiff, which for the moment must be accepted as true, that she did not threaten to mutilate the defendant’s children and his family. This denial created an important conflict in the evidence bearing upon the question of defendant’s belief in the insanity of the plaintiff. These threats, so the defendant testified, were the only foundation for his belief that the plaintiff was subject to “insane delusions and hallucinations.” In addition there is abundant evidence in the record which tends to impugn the belief of the defendant in the insanity of the. plaintiff at the time of the institution of the proceedings which are stated as the basis of the cause of action for malicious prosecution. Thus there is evidence that the plaintiff went to the defendant’s office on a certain day at his invitation and that the defendant then and there said to her, “Mabel, dear, you remember that you are in business and have a good thing here. Remember what I am telling you. You had better keep still or I will put you where the bow-wows won’t bark at you.” Certainly this last bit of evidence is some evidence of the fact that the defendant did not in fact believe in the truth of the charge which he had lodged against the plaintiff. Furthermore, there is the testimony of the defendant that when he gave money and canceled the mortgage of the plaintiff in May, 1920, he did it to get rid of the “annoyance and worry.” This testimony, when viewed in the light of the meretricious relations, which, it is claimed by the plaintiff, existed, and which, for the purpose of testing the correctness of the trial court’s ruling directing a verdict, must be assumed to have existed, might well have justified the jury in finding that the defendant was actuated by a desire to get rid of the plaintiff and to permanently escape “the annoyance and worry” attendant
apon her continued attentions, rather than by a genuine belief in the plaintiff’s insanity. It cannot, we think, be gainsaid that this evidence, while it may, perchance, have been evidence of malice, was also some proof of the fact that defendant did not honestly believe in the insanity of the plaintiff when he preferred the charge against her.
There is nothing in the eases of
Potter
v.
Seale, Dawson
v.
Schloss,
and
Stein
v.
Lacassie, supra,
holding that both malice and want of probable cause must concur and that want of probable cause cannot be inferred from malice, which runs counter to the conclusion expressed herein. We are not holding that want of probable cause may be inferred from malice, but we are holding that the same evidence which tends to prove malice may also, if it indicates a lack of belief on the part of the defendant in the guilt of the plaintiff, tend to prove want of probable cause. The instruction in the case of
Stein
v.
Lacassie, supra,
which upon appeal was held erroneous, declared that in the absence of proof of advice of counsel with a fair and full statement of the facts, that a malicious determination of the defendant constituted lack of probable cause. The instruction was clearly erroneous for it, in effect, declared that in the absence of proof of advice of counsel, want of probable cause
must
be inferred from malice. The criticism made of the instruction was that the defendant may have acted in good faith even though she was acting upon a fixed and malicious determination of her own. This is undoubtedly a just criticism for malice and lack of belief in the guilt of the accused are not one and the same thing. For example, the defendant, honestly believing in the guilt of the plaintiff, may, with a vindictive motive, prosecute the plaintiff. In such a situation, if, in addition to the honest belief of the defendant in the guilt of the plaintiff, there was the added fact of reasonable grounds for the belief, then there would be probable cause, despite the presence of malice. If, on the other hand, in addition to malice, there was a lack of belief by the defendant in the guilt of the plaintiff, there was want of probable cause, despite the existence of facts which would justify the suspicions of a reasonable man in the guilt of the accused.
The opinion of the jury as to the existence of the facts involved in the determination of probable cause may be obtained in either of two alternative ways. One mode is the
use of the special verdict. While this is apparently the less frequent it is in many respects the better practice. The trial court by this method gets the opinion of the jury as to what facts exist without giving any intimation as to what facts must exist to entitle either party to a judgment.' From the facts thus obtained the trial court determines the existence or nonexistence of probable cause as a matter of law.
The prevailing practice, however, seems to be for the trial court to submit the question of probable cause to the jury with hypothetical instructions as to what facts in the particular case under consideration do or do not amount to probable cause. That is to say, the jury are instructed that if they find certain enumerated facts to exist, there was probable cause and their verdict must be for the defendant, but if they find certain other enumerated facts to exist there was want of probable cause and their verdict must be for the plaintiff.
(Ball
v.
Rawles,
and other cases
supra.)
The plaintiff contends that the trial court erred in admitting over her objection the testimony of a Mr. Ault concerning what she said to him. The ground of the objection was that Ault was the attorney for the plaintiff and that whatever she may have said to him was a privileged communication. It is clear that the testimony complained of and objected to does not fall within the category of confidential communications made between attorney and client. This is so because the record shows that whatever was said by the plaintiff to the attorney in question was said with the express understanding that it was to be communicated to the defendant and, moreover, it does not appear that the plaintiff went to the attorney in question seeking his advice in his capacity as an attorney.
The judgment is reversed.
Lawlor, J., Seawell, J., and Kerrigan, J., concurred.