¶1(specially concurring).
¶2It would be helpful if the Supreme Court would decide this issue: In a claim for malicious prosecution, when is want of probable cause a question of law for the trial court, or a question of fact for the jury?
¶3The main reason for a definite decision is that trial attorneys have agreed that probable cause is only a question of law for the trial court. Somerstein v. Gutierrez (Ct.App.), 85 N.M. 130, 509 P.2d 897, (1973).
¶4The trial court and opposing counsel may not understand the language of the majority opinion and be able to apply it to the facts of a claim based on probable cause. They cannot tell whether probable cause is a question of fact for the jury or a question of law for the trial court.
¶5(a)What is a “Question of Law”?
¶6Judges and lawyers have always “believed” that an ultimate fact or an issue of fact became a question of law only when the facts regarding causation were undisputed and all reasonable inferences to be drawn therefrom were plain, consistent and uncontradictory. White v. Montoya, 46 N.M. 241, 126 P.2d 471 (1942); Valdez v. Gonzales, 50 N.M. 281, 176 P.2d 173 (1946); Castillo v. Juarez, 80 N.M. 196, 453 P.2d 217 (Ct.App.1969); Loucks v. Albuquerque National Bank, 76 N.M. 735, 418 P.2d 191 (1966); Olguin v. Thygesen, 47 N.M. 377, 143 P.2d 585 (1943).
¶7(b)What is “Probable Cause”?
¶8Marchbanks v. Young, 47 N.M. 213, 216, 139 P.2d 594, 596 (1943), quoted the following :
“Probable cause is an honest belief on the part of the prosecutor in the guilt of the accused, based on reasonable grounds.”
¶9(c)Is “Probable Cause” a “Question of Law?’ for the Trial Court?
¶10Marchbanks, supra, p. 215, 139 P.2d p. 596, quoted:
“Probable cause in actions for malicious prosecution is a question of law for the court.” Meraz v. Valencia, 28 N.M. 174, 210 P. 225. Vincioni v. Phelps Dodge Corp., 35 N.M. 81, 290 P. 319.
¶11Hughes v. Van Bruggen, 44 N.M. 534, 542, 105 P.2d 494, 499 (1940), said:
We know that what facts or circumstances amount to probable cause is a question of law for the court. Haydel v. Morton, 28 Cal.App.2d 383, 82 P.2d 623; 18 R.C.L. 58.
¶12Brown v. Village of Deming, 56 N.M. 302, 316, 243 P.2d 609, 618 (1952), said:
It is true, as was stated in Hughes v. Van Bruggen, supra, that what constitutes probable cause is a question of law for the trial court to determine,
¶13Bokum v. Elkins, 67 N.M. 324, 329, 355 P.2d 137, 140 (1960), said:
It is also true that what constitutes probable cause is a question of law for the trial court to determine, Hughes v. Van Bruggen, supra, ....
¶14In none of the above cases did the court say:
Honest belief on the part of the prosecutor becomes a question of law when the facts and inferences drawn therefrom regarding his belief are undisputed.
¶15Under the above rule in a jury trial, the trial court becomes the fact finder. It weighs the evidence pro and con, the conflicting facts and circumstances, and then instructs the jury there is probable cause, or dismisses the action if it believes there is no probable cause.
¶16On the other side of the coin, we find the following:
¶17Leyser v. Field, 5 N.M. 356, 23 P. 173 (1890); Meraz v. Valencia, 28 N.M. 174, 210 P. 225 (1922); Vincioni v. Phelps Dodge Corp., 35 N.M. 81, 290 P. 319 (1930); Kumor v. Graham, 39 N.M. 245, 44 P.2d 722 (1935), all abandoned in New Mexico jurisprudence. These cases are cited and quoted in the majority opinion.
¶18These cases stand for this rule:
Where the evidence on probable cause (the honest belief of the prosecutor) is conflicting, want of probable cause is a matter within the province of the jury. Where evidence on probable cause is undisputed, want of probable cause is a matter for the court to decide.
¶19A petition for certiorari should be filed in this case. It should be granted to establish a clear and sensible rule, and not leave the rule vague and indefinite. Confusion confounded should end.
¶20I concur only in the result of the majority opinion.