Palmer Ford, Inc. v. Wood

RODOWSKY, Judge. Whether the defendant was entitled to a directed verdict is the issue presented in this malicious prosecution and abuse of process suit. With respect to the malicious prosecution claim the argument focuses on the legal sufficiency of the evidence to prove the absence of probable cause. As to that ⁴⁸⁶ element of the tort the plaintiff’s case rests entirely on the dismissal by a judge in the District Court of Maryland of all criminal charges against the plaintiff at hearings which, inferentially, were in the nature of preliminary hearings.

The question presented here is whether the fact of that dismissal made the probable cause issue one to be decided by the jury when all of the other evidence in the civil case, directly proving the facts known to the defendant at the time criminal charges were initiated, is uncontradicted and would establish probable cause as a matter of law but for the possible effect to be given to the dismissal. Analysis of the malicious prosecution decisions of this Court dealing with the respective functions of judge and jury in the determination of probable cause where the evidence is conflicting on that issue reveals two seemingly contradictory lines of cases. One of these lines states the principle that it is the judge’s function to decide whether the facts as found by the jury constitute a want of probable cause. Under the other line of cases the jury is said to make the ultimate determination whether or not the facts found by it constitute probable cause.

This second line of cases has not distinguished the jury’s more limited role in malicious prosecution actions from the function of the jury in negligence cases. If the dismissal in the instant matter is treated as evidence of a lack of probable cause sufficient to support a verdict for the plaintiff in the face of direct and otherwise uncontradicted evidence of probable cause, the ultimate determination of probable cause would be transferred from court to jury. Because this effect is contrary to the law of malicious prosecution, we shall reverse without a new trial on the malicious prosecution claim. On the abuse of process claim we shall conclude that the defendant was not entitled to a directed verdict.

There was sufficient evidence of the defendant’s improper purpose in initiating the criminal prosecution and of willful misuse of the process, as a threat in the collection of a debt. A new trial on damages on this claim will be ordered. ⁴⁸⁷ Plaintiff in the trial court and respondent here is Franklin E. Wood (Wood or Plaintiff). In the early spring of 1977 Wood was a 20-year-old, part-time, college student who worked full-time in the evening. His parents were divorced and he lived with his mother.

He was also the attentive owner of a 1970 Mustang convertible which was in need of major repairs. On April 3, 1977 Wood took the car for service to the petitioner, Palmer Ford, Inc. (Palmer Ford), the defendant in this civil litigation. Palmer Ford, in writing, estimated that the work which Wood initially requested would cost $400. Wood was prepared to pay this amount because he had obtained $400 from his father to have the Mustang repaired.

On a nearly daily basis Wood went to the repair shop at Palmer Ford and watched the progress of the work. One of Palmer Ford’s mechanics suggested that the car needed additional work, which Wood authorized, but Wood said he could not pay more than an additional $150, or $200 at the very most. No modified, written estimate was furnished. When Wood was advised on April 11 that work on his car was completed, he went to Palmer Ford and was presented with a bill for $924.

He was “shocked” and “outraged” and was unable to pay for the release of his car. At his place of employment that evening Wood received a telephone call from an individual who did not identify himself, but whom Wood identified at the civil trial as Danny Jones (Jones), a supervisory employee in the service department at Palmer Ford. 1 The caller sympathized with Wood’s financial predicament and offered to give Wood his car for $400. Wood hung up. The following day, April 12, Wood was back in the shop at Palmer Ford where he received another telephone call from the same person.

Wood was told that if, at noon on the next day, Wood placed $400 under the trash can in the men’s room adjacent to the new car showroom at Palmer ⁴⁸⁸ Ford, he would find under the trash can the bills totaling $924, stamped “PAID,” together with the keys to his car. Wood returned to Palmer Ford the next day, April 13. At noon he went to the men’s room, found receipted bills for the work on his car and his car keys under the trash can, placed $400 in cash under the trash can, went to his car and drove it away. A few days later Wood brought the car back to Palmer Ford in order to complain that the car’s heater was overheating and that Palmer Ford should replace it.

Wood was met in the service lane by Jones who told Wood that Palmer Ford was not responsible for the car in any way and that Wood was “to get the hell out of there.” Wood left. About one week after the April 13 exchange had been effected under the trash can, the clutch on Wood’s Mustang “went out” and he had the car towed to Palmer Ford. That evening, or the next day, Wood was telephoned by John Kirby (Kirby), the comptroller of Palmer Ford. Kirby said that Palmer Ford had no record of having been paid by Wood for the $924 of repairs.

Kirby wanted to know how Wood had gotten possession of the Mustang and asked Wood to come to Palmer Ford to discuss the matter. Wood told' Kirby that Wood had paid for the repairs and had receipts. Nevertheless Wood met with Kirby in the latter’s office at Palmer Ford the next day. Also present was Palmer Ford’s service manager, Frederick L. Gilpin (Gilpin).

Kirby at that time had the receipted bills. There was evidence that Gilpin had found the receipts in Wood’s car after it had been towed to Palmer Ford. By the time of the meeting, charges for the towing and for work on the clutch had increased Wood’s balance with Palmer Ford to $952.25. According to Wood, Kirby said that Palmer Ford was not interested in prosecuting and that, if Wood would tell Kirby everything that had happened, Palmer Ford would arrange some kind of a payment schedule.

Wood told Kirby and Gilpin “the entire story.” Kirby responded that he did not at that time know if Palmer Ford would deduct $400 from the bill or whether Wood would have to pay the entire balance. The next day ⁴⁸⁹ Kirby telephoned Wood to say that the entire $952.25 would have to be paid. Under Wood’s testimony, this conversation occurred about Friday or Saturday, April 22 or 23. On Friday, April 22 Kirby dictated a letter, which was typed and dated April 25, 1977, to Wood’s father, requesting him to meet with Kirby to discuss “the method used to obtain [Wood’s] vehicle when the work was completed” at Palmer Ford.

No meeting with Wood’s father was held due to his illness. Kirby had also telephoned Wood’s mother, Mrs. Marilyn Wood, to arrange a meeting with her. According to Mrs. Wood, that meeting took place sometime in the period April 23 to April 27, and certainly before April 28. Kirby said that Palmer Ford needed the money for the repairs to her son’s car or her son would go to jail.

Mrs. Wood told Kirby that she did not want her son arrested or going to jail, and that she would get the money by borrowing it from her credit union. On April 26, 1977 Pfc. Marvin R. Marks (Marks) of the Prince George’s County police was contacted by Kirby and asked to come to Palmer Ford. Marks had been investigating a January 1977 breaking and entry at Palmer Ford as well as some later incidents of theft from, and vandalizing of, automobiles stored on the fenced, back lot at Palmer Ford.

Although Marks died prior to the trial in the case sub judice, his written reports concerning the Wood incident were admitted into evidence. These reflect that Kirby told Marks that Wood had placed $400 under the trash can in exchange for receipts and keys. The reports state that Kirby “indicated] that he was in favor of prosecution.” Following his conversation with Kirby, Marks consulted with an Assistant State’s Attorney for Prince George’s County and was advised that the proper charge to be levied was embezzlement. On April 27, 1977 at 1:00 p.m.

Marks arrested Wood. The statement of charges, signed and sworn to by Marks and dated April 27, charges embezzlement of $924 from Palmer Ford. At about 2:00 p.m. on April 27 ⁴⁹⁰ Marks questioned Wood and obtained a signed statement, written in Wood’s own hand, which again described the telephone calls and the exchange. In his statement Wood said that he did not recognize the voice of the caller but that he thought it was Jones because of certain behavior of Jones which was set forth in the statement.

The last day that Jones had reported for work at Palmer Ford was April 25. He returned to Palmer Ford on the morning of April 28 and said he had resigned. Kirby contacted Marks to advise that the “suspect” (Jones) was on the premises. Marks asked Jones to come to the police station for questioning.

Jones denied any knowledge of the embezzlement. No charges have ever been brought against Jones in connection with the Wood incident. On May 3, 1977 Mrs. Wood delivered to Kirby at Palmer Ford a check from her credit union in the amount of $952.25 and obtained a receipt specifying that the payment applied to the orders for work on the Mustang. Mrs. Wood testified that she said to Kirby “ ‘I presume that this arrest business is all going to be over with,’ ” and that he replied, “ ‘Yes.

All we want is our money.’ ” Kirby’s testimony in substance was that he left the criminal prosecution in the hands of Marks and of the State’s Attorney’s office. The police reports reflect that Marks knew that there had been a full recovery by Palmer Ford. The record before us is sketchy at best concerning the criminal prosecution. For reasons unknown to us neither party in the civil action introduced the docket entries, the court file or the transcript of any of the proceedings in the criminal case against Wood.

What transpired is gleaned from Wood’s testimony and from certain exhibits. A hearing in the criminal case was set before the District Court for June 2, 1977, but there was no trial. At that time the charging document was amended by interlineation from an accusation of embezzlement of $924 in violation of Md.Code ⁴⁹¹ (1957, 1976 Repl.Vol.), Art. 27, § 129 to a charge that Wood had obtained that sum by false pretenses in violation of Art. 27, § 140. 2 There were postponements from July 27 and September 15 to October 13. Wood appeared in District Court on October 13 but did not go to trial.

He testified that there was “a hearing of some sort” and he was “rearrested” at that time. Plaintiff’s exhibits in the instant civil case include two criminal informations, each of which bears the certification of a Prince George’s County deputy sheriff that it was served on Wood on October 13, 1977 at the “Hyattsville Court.” One information charged larceny by Wood from Palmer Ford on April 13, 1977 of assorted auto parts valued at $357.55. The other information charged unauthorized use of the Mustang on that date by Wood from the custody of Palmer Ford. Trial was rescheduled to February 15, 1978.

Wood testified that he did not go to trial on February 15, 1978 but that the “charges were dropped.” 3 The arrest record from the Prince George’s County Police Department, which was put in evidence in the subject civil case, reflects that on October 13, 1977 Wood “[pjlead not guilty to Grand ⁴⁹² Larceny” and that on February 15, 1978 he was “[fjound NOT GUILTY.” 4 Wood sued Palmer Ford for damages. After certain discovery, including the taking of Wood’s deposition, Palmer Ford moved for summary judgment which was granted on both the malicious prosecution and abuse of process claims. The Court of Special Appeals reversed. Wood v. Palmer Ford, Inc., 47 Md.App. 692 , 425 A.2d 671 (1981).

That opinion emphasized that, because the appeal was from the granting of a summary judgment, the “burden of demonstrating clearly the absence of any genuine issue of fact is here on Palmer [Ford] as the moving party.” Id. at 697 , 425 A.2d at 675 . It was held that Palmer Ford had “not [met] its burden of demonstrating clearly the absence of any genuine issue of fact concerning the institution of the criminal proceedings.” Id. at 702 , 425 A.2d at 677 . The intermediate appellate court reasoned as follows: The facts and inferences to be drawn therefrom, pertinent to the element of probable cause, are in this case not so clear and undisputed as to allow the existence of want of probable cause to be a question of law for the court. It is by no means plain from the record before us how and why the changes in the charges were from time to time made.

It is undisputed that the proceedings terminated in favor of Wood, but the nature of the terminations is unknown. We think that it is a permissible inference from the record that Wood was discharged in proceedings comparable to a preliminary hearing, the judge passing on the sufficiency of the case to justify prosecution and finding it lacking. This inference supplies evidence of lack of probable cause and would defeat the motion for summary judgment. [Id. at 703-704, 425 A.2d at 678 .] ⁴⁹³ On trial after remand the case was submitted to the jury. The instructions gave the jury the general legal definition of probable cause and left it to the jury to apply that definition to the facts of the case.

Palmer Ford took no exceptions relevant to that phase of the instructions. The verdict found Palmer Ford liable to Wood both for malicious prosecution and for abuse of process and awarded compensatory damages of $100,000 and punitive damages of $400,000. The verdict sheet furnished to the jury did not call upon the jury to allocate damages between the two claims in the event Palmer Ford were found liable on both. Palmer Ford’s motion for judgment n.o.v. was denied but Wood accepted a remittitur which reduced compensatory damages to $25,000 and punitive damages to $100,000.

Palmer Ford appealed to the Court of Special Appeals where the judgment was affirmed. On the issue of probable cause the unreported appellate opinion states that “[tjhere were innumerable facts in evidence from which the jury could reasonably infer that there was an absence of probable cause for the prosecution .. . . ” We granted Palmer Ford’s petition for certiorari. The “innumerable facts” referred to by the Court of Special Appeals are not set forth in its opinion. As we read the record, the reference necessarily is to the series of changes in the charges asserted against Wood and to the ultimate disposition, favorable to Wood, of all charges without trial on the merits.

I. A. One of the elements of malicious prosecution which a plaintiff has the burden of proving is the absence of probable cause for the underlying criminal proceeding. See Exxon Corp. v. Kelly, 281 Md. 689, 693 , 381 A.2d 1146, 1149 (1978). We have defined probable cause in this context as “ ‘a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused is guilty.’ ” Glad- ⁴⁹⁴ ding Chevrolet v. Fowler, 264 Md. 499, 505 , 287 A.2d 280, 284 (1972), quoting Banks v. Montgomery Ward & Co., supra, 212 Md. at 39, 128 A.2d at 604. In the case at hand it is uncontradicted that Wood told Kirby about Wood’s having received the telephone calls and about Wood’s having left $400 under the trash can in exchange for receipted bills and the keys to the Mustang.

Wood testified that he told Kirby the full story. Kirby testified that he was told the above facts by Wood. Kirby said he gave those facts to Marks and that communication is confirmed by Marks’ reports. Marks’ reports also reflect that Wood told Marks the same facts.

Wood’s written statement that was given to Marks contains the same facts. Mrs. Wood testified Wood told her the same facts. These facts reflect that a Palmer Ford employee, who was said by Wood to be Jones, probably committed embezzlement. Standing alone, these facts would warrant a cautious person in believing that Wood was aiding and abetting the employee.

Wood appeared to be technically a principal in the second degree to embezzlement. Article 27, § 129 then provided in relevant part that [wjhosoever being .. . employed ... in the capacity of a ... servant ... by any ... body corporate shall fraudulently embezzle any money . .. which . . . shall be delivered to or received, or taken into possession by him, for or in the name or on account of his master or employer, shall be deemed to have feloniously stolen the same from his master or employer, although such money . .. was not received into the possession of such master or employer, otherwise than by the actual possession of his ... servant ... and being convicted thereof, shall be punished.... Wood aided the apparent embezzlement by the surreptitious manner in which he delivered the $400 in cash in order to obtain possession of his car and of the fully receipted bills. Kirby was warranted in believing that the payment was made to a Palmer Ford employee because Wood told Marks that the telephone caller was Jones, because the receipted ⁴⁹⁵ invoices which Wood had obtained and which Kirby saw prior to initiating prosecution bore the Palmer Ford “PAID” stamp, and because the keys to the Mustang had been in Palmer Ford’s possession.

An individual who is not an employee of the victim of embezzlement may be guilty of embezzlement by aiding or abetting the employee who commits the crime as a principal in the first degree. See United States v. Ray, 688 F.2d 250 (4th Cir.1982), cert, denied,U.S. -, 103 S.Ct. 829 , 74 L.Ed.2d 1024 (1983); United States v. Gregg, 612 F.2d 43 (2d Cir.1979); Gibbs v. State, 37 Ariz. 273, 276 , 293 P. 976, 977 (1930); Garrett v. State, 243 Ga. 322 , 253 S.E.2d 741 (1979); State v. Nahoum, 172 La. 83 , 133 So. 370 (1931); Wood v. State, 93 Okl.Cr. 282 , 227 P.2d 424 (1951). See also People v. Hess, 104 Cal.App.2d 642 , 234 P.2d 65 , appeal dismissed sub nom. Hess v. California, 342 U.S. 880 , 72 S.Ct. 177 , 96 L.Ed. 661 (1951) (nongovernmental employee conspired to embezzle from state).

Nor is it necessary for the principal in the first degree actually to have been convicted prior to prosecution of the aider or abettor. See Funkhouser v. State, 51 Md.App. 16 , 18 n. 2, 440 A.2d 1114 , 1116 n. 2, cert, denied, 293 Md. 331 (1982) (if at the trial of a principal in the second degree enough “evidence is adduced legally sufficient to show the guilt of the principal in the first degree” a principal in the second degree may be convicted before prosecution of the principal in the first degree). For probable cause purposes the focus is on those facts known to, and genuinely believed by, the one initiating or continuing the prosecution when it is initiated or continued. See Jordan v. James & Holstrom Piano Co., 140 Md. 207, 212-13 , 117 A. 366, 369 (1922).

Here there is no contention that Kirby did not honestly, and reasonably, believe what Wood told him, or that, during the time the prosecution was pending, Palmer Ford had learned of any facts which would alter that belief. We need not analyze, in relation to the facts known to Palmer Ford, whether probable cause existed for believing that Wood had committed any of the other crimes with ⁴⁹⁶ which he was later charged. As far as Palmer Ford was concerned, it was a single prosecution and there is nothing in the record to suggest that Palmer Ford’s agents had any part in making the technical distinctions between the closely related crimes in the sequence of charges. See Jordan v. James & Holstrom Piano Co., supra, 140 Md. at 213 , 117 A. at 369 .

But for the dismissal without trial of the charges against Wood, he failed as a matter of law to prove the absence of probable cause for the criminal prosecution against him. B. Next, we shall assume, arguendo, that Plaintiff’s evidence describing the dismissal permits an inference that the dismissal occurred at a hearing in the nature of a preliminary hearing. In Banks v. Montgomery Ward & Co., supra, 212 Md. at 40, 128 A.2d at 605 we said that this Court . . . definitely has held that dismissal by a magistrate at a preliminary hearing is prima facie evidence of lack of probable cause. The defendant, of course, may rebut the inference.

Norvell v. Safeway Stores, Inc., 212 Md. 14, 20-21 , 128 A.2d 591, 594 (1957), expressed the rule to be that discharge by a magistrate on preliminary hearing may furnish some evidence of a want of probable cause, whereas acquittal after trial does not. There is some authority to the effect that even a discharge on preliminary hearing is not evidence of a want of probable cause, and, in the rule adopted by the Restatement, discharge only makes out a prima facie case where it is unexplained. The prosecution in Nance v. Gall, 187 Md. 656, 669 , 50 A.2d 120, 126 (1946), modified, 187 Md. 656, 674 , 51 A.2d 535 (1947), “ended in a dismissal of the charge by a magistrate .... ” Nance expresses the consequence as follows: This result of the hearing before the magistrate establishes the falsity of the charge, and supports an inference that ⁴⁹⁷ the prosecution was motivated by malice and want of probable cause. This inference could have been rebutted by proof that facts and circumstances, sufficiently strong in themselves, were known to defendants . . . such as to induce a cautious and careful man to believe [the malicious prosecution plaintiff] guilty of [the] charge .... [Id. at 669, 50 A.2d at 126 .] In Straus v. Young, 36 Md. 246, 255 (1872) “the discharge of the plaintiff by the examining magistrate” was said to be “prima facie evidence of the want of probable cause, sufficient to throw upon the defendant the burden of proving the contrary.” While that case was an appeal by the defendant who argued that there was insufficient evidence of a want of probable cause, the Court rejected the argument by relying on both the “prima facie evidence” and on testimony from the plaintiff.

No malicious prosecution decision of this Court seems to have presented as starkly as does the instant case the question of the effect to be given dismissal at a preliminary hearing in the face of otherwise uncontradicted evidence establishing probable cause as a matter of law. Plaintiff essentially argues that the dismissal operates as substantive evidence which remains in the case throughout and which furnishes a legally sufficient basis for the verdict in his favor. Palmer Ford, while not explicitly arguing a bursting bubble theory, contends that there is a point at which the proof of probable cause is so strong that any presumption of a lack of probable cause must cease to operate. We believe that the answer is to be found principally in the division of the functions of judge and jury in an action of malicious prosecution.

That division, however, has become blurred in some of the more recent decisions of this Court. Consequently, before reviewing the Maryland law, we shall look first to general common law. C. Restatement (Second) of Torts § 673, “Function of Court and Jury,” states the following rule (the A.L.I. Rule): ⁴⁹⁸ (1) In an action for malicious prosecution the court determines whether (c) The defendant had probable cause for initiating^ continuing the proceedings. (2) In an action for malicious prosecution, subject to the control of the court, the jury determines (a) The circumstances under which the proceedings were initiated in so far as this determination may be necessary to enable the court to determine whether the defendant had probable cause for initiating or continuing the proceedings ....

Comment e to § 673 further explains the A.L.I. Rule: The respective functions of court and jury in actions for malicious prosecution differ in one important particular from their respective functions in other actions of tort in which, as in actions for negligence, the liability of the defendant depends upon the unreasonable character of his conduct. In passing upon this question someone must determine what the defendant did or failed to do and the circumstances under which his act or omission occurred; and someone, either court or jury, must determine whether, in the light of these circumstances, his conduct measured up to the standard of a reasonable man. In actions for negligence and other tort actions in which the liability of a defendant depends upon the unreasonable character of his conduct, both of these matters are determined by the jury, subject to the limitations stated in § 285, Comments b to e. In actions for malicious prosecution, however, upon the issues of favorable termination and probable cause, the jury has only the function of finding the circumstances under which the defendant acted.

The court determines whether, under those circumstances, the termination was sufficiently favorable to the accused, and whether the defendant had or had not probable cause. If there is no ⁴⁹⁹ conflict in the testimony as to what the circumstances were, the court has no need for a finding of the jury. The jury is not called upon to act unless there is a conflict in the testimony that presents an issue of fact for its determination. The respective functions of the court and jury in determining the issue of probable cause can be exercised by them in one of two ways.

The better but less usual method is to require the jury to find a special verdict setting forth the circumstances under which they find that the proceedings were initiated. Upon these findings the court then determines whether the defendant had probable cause. The usual method is for the court to charge the jury under what combination or combinations of circumstances, which may be found under the evidence, the defendant did or did not have probable cause for initiating the proceedings. W. Prosser, Handbook of the Law of Torts 846-47 (4th ed. 1971) describes the general rule, and the reason underlying it, as follows: The courts have always distrusted malicious prosecution actions, and have retained a strong hand over them.

For this reason the existence of probable cause, which involves only the conduct of a reasonable man under the circumstances, and does not differ essentially from the determination of negligence, usually is taken out of the hands of the jury, and held to be a matter for decision by the court. That is to say, the court will determine whether upon the appearances presented to the defendant, a reasonable man would have instituted the proceeding. The disingenuous reason sometimes is given, that since the authority to bring criminal prosecutions is derived from the law, it is for the law to determine what will constitute justification for it. If there are questions of fact in dispute, as to what appeared to the defendant or what he did or did not do, they are submitted to the jury for a special verdict, or under instructions declaring the issue of probable cause according to either version of the facts.

The question is ⁵⁰⁰ then a “mixed one of law and fact.” In many cases, where other issues are involved under a general verdict, the jury undoubtedly proceeds to determine probable cause to its own satisfaction. A few jurisdictions, particularly New York, have rejected the rule that probable cause is for the court, and have held that where more than one conclusion may be drawn as to the reasonableness of the defendant’s conduct, the question is for the jury. [Footnotes omitted.] Accord: 1 F. Harper & F. James, Law of Torts 319 n. 29 (1956) (citing, inter alia, Jordan v. James & Holstrom Piano Co., supra, as supporting the majority rule); Annot., 87 A.L.R.2d 183 (1963); Annot., 1915D L.R.A. 1; M. Newell, A Treatise on the Law of Malicious Prosecution, False Imprisonment and the Abuse of Legal Process 278-82 (1892). The A.L.I. Rule is also the English law. See Herniman v. Smith, [1938] A.C. 305; Clerk & Lindsell, Torts 867-70 (15th ed. 1982).

Standard Maryland works state that the majority rule is “clearly settled” as the law of Maryland. They also state that “[i]n [Maryland] practice the jury are instructed hypothetically upon the question, and are then left to determine from the evidence whether the facts thus hypothetically put to them, as constituting or not constituting [probable cause], are sufficiently proved.” 1 J. Poe, Pleading and Practice 135-36 (1st ed. 1882) (footnotes omitted); id. at 150 (Tiffany 5th ed. 1925); id. at 244 (Sachs 6th ed. 1970). 5 However, a comment in Maryland State Bar Association, Maryland Pattern Jury Instructions-Civil § 13:4 (1977) states that “where the facts are in dispute, the question [of probable cause] is one of fact for the jury.” The statement is supported by citation to W.T. Grant Co. v. Guercio, 249 Md. 181 , 238 A.2d 855 (1968), which we shall discuss, infra. ⁵⁰¹ We turn now to an examination of this Court’s decisions. As previously indicated, they are inconsistent. Maryland is by no means unique in this regard.

The Annot., supra, 87 A.L.R.2d at 186, generalizes that the principles [applicable to the determination of probable cause in malicious prosecution actions] announced by the great majority of the courts are not those which . .. one would logically expect to be applicable to this type of question. Moreover, the failure to state and apply these principles precisely, and the confusion caused by courts failing to appreciate the consequences of their literal application, as well as a natural reluctance in many instances, to require rigid application, has left this area of practice in a state of uncertainty. D. The leading early decision of this Court on probable cause in a malicious prosecution action, which we have cited in 29 subsequent cases, is the opinion by Judge (later Chief Judge) Alvey in Boyd v. Cross, 35 Md. 194 (1872). It affirmed the trial court which had instructed the jury that there was no evidence of malice or want of probable cause.

On the functions of judge and jury in determining probable cause Judge Alvey wrote: The want of probable cause is a mixed question of law and fact. As to the existence of the facts relied on to constitute the want of probable cause, that is a question for the jury; but