This is an appeal from a judgment, dated August 18, 1949, upon an order of the trial court, dated July 30, 1949, granting defendant's motion for summary judgment dismissing plaintiff's complaint and awarding costs and disbursements to defendant in the sum of $105. The action was commenced on October 29, 1948.

This is an action for malicious prosecution brought by plaintiff, John (also known as "Jack") Elmer, against defendant, Chicago — North Western Railway Company, arising out of the arrest of plaintiff on October 2, 1947, upon the complaint of one Fred Schleicher, a railway detective of the said defendant, upon the charge of unlawfully and feloniously taking, stealing, and carrying away railway rails of the value of $50 on June 27, August 5, August 8, and August 11, 1947. Elmer entered a plea of "not guilty" and on the preliminary examination, the municipal judge found that an offense had been committed and that there was reasonable and probable cause to believe Elmer guilty thereof, and Elmer was bound over for trial. Subsequently, on motion of the district attorney, the case was dismissed because of insufficient evidence.

Plaintiff then brought this action for malicious prosecution against the defendant Railway Company and charged:

"That on or about the second day of October, 1947, the said defendant through its agent and employee Fred M. Schleicher unlawfully and maliciously and with intent to injure the said plaintiff caused plaintiff to be arrested on a charge of grand larceny and compelled plaintiff to be confined in the county jail for many hours as a result thereof and caused plaintiff to be falsely imprisoned and restrained of his liberty without reasonable cause and without right or authority so to do, all against the will of the plaintiff."

No answer was served or filed by the defendant Railway Company, but during the time within which an answer should be filed, a motion for summary judgment was made on its behalf on November 17, 1948. Plaintiff filed an affidavit in opposition to the affidavit of the defendant Railway Company and filed an affidavit of no answer and moved for judgment upon the failure of the defendant to answer.

The defendant's affidavit in support of its motion for summary judgment recited the proceedings on the preliminary examination and alleged that on the facts and record, plaintiff had no cause of action, and that said action had no merit. Annexed to the affidavit was a copy of the docket of the municipal court.

Plaintiff's affidavit in opposition to defendant's motion set out the arrest of plaintiff under the complaint executed by defendant's agent, acting in the scope of his authority, on behalf of the defendant; that such complaint was without proper cause and instituted by the defendant with malice in that, among other things, the purpose was not the conviction of plaintiff but to ascertain the guilt of others suspected of stealing railway property and the recovery of such property; that defendant's agent, Schleicher, complaining witness, knew that plaintiff believed he owned the rails in question; and that said proceedings were dismissed on motion of the district attorney prior to trial. Attached thereto was a copy of a portion of the testimony taken on the preliminary examination in said action.

Other material facts will be stated in the opinion.

MARTIN, J.

The six essential elements in an action for malicious prosecution are:

1. There must have been a prior institution or continuation of some regular judicial proceedings against the plaintiff in this action for malicious prosecution.

2. Such former proceedings must have been by, or at the instance of, the defendant in this action for malicious prosecution.

3. The former proceedings must have terminated in favor of the defendant therein, the plaintiff in the action for malicious prosecution.

4. There must have been malice in instituting the former proceedings.

5. There must have been want of probable cause for the institution of the former proceedings.

6. There must have been injury or damage resulting to the plaintiff from the former proceedings.

Stidham v. Diamond State Brewery (1941), 41 Del. 330, 21 A.2d 283, 284; 54 C.J.S., Malicious Prosecution, p. 955, sec. 4.

Several of the named essentials are admittedly present in this case. (1) There was a former criminal proceeding instituted against John Elmer, the present plaintiff; (2) such proceeding was instituted by the present defendant through its agent and employee, Fred M. Schleicher; and (3) the former proceeding terminated in favor of the defendant therein as the criminal charge was dismissed on motion of the district attorney for insufficient evidence. Finally (6) there is evidence of damage to the present plaintiff.

This then leaves to be considered the two elements of the action, viz: (4) The existence of malice in the original prosecution, and (5) the want of probable cause in instituting such original prosecution.

Malice may be actual or inferred. 54 C.J.S., Malicious Prosecution, p. 1003, sec. 41. The use of criminal process for private purposes shows the existence of malice. 54 Id., p. 1006, sec. 42. It may be inferred from lack of probable cause. 54 Id., p. 1006, sec. 43.

The main issues to be determined here are whether there was probable cause for defendant's agent, Schleicher, to make the complaint against John Elmer charging him with larceny, and whether Schleicher made a full and fair disclosure of the facts to the district attorney.

"Probable cause" has been defined to be such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty. It is generally held that whether a defendant sued for malicious prosecution acted on probable cause is a mixed question of law and fact. Where the facts are in dispute, the jury determines the facts under proper instruction of the trial court, and the court determines the question of probable cause from such facts. Where the facts are undisputed, the question of probable cause is solely for the court. De Vries v. Dye (1936), 222 Wis. 501, 504, 505, 269 N.W. 270.

An examination of the testimony of defendant's agent, Schleicher, in plaintiff's affidavit filed in opposition to defendant's motion for summary judgment, discloses that Schleicher had no personal knowledge that Elmer had committed any offense. Schleicher did not see the rails removed. The only other railroad witness for the defendants was a flagman who saw Elmer on August 5th at about 11:15 a.m. openly load two pieces of rail onto his car. There was no concealment of any kind about the transaction. On preliminary examination the flagman testified: "Mr. Elmer did not appear to be a man stealing rails, when I saw him." He did not report the matter to the police. The police officer for `the city of Evansville testified that on June 27, 1947, he saw Elmer loading a rail on his automobile and on cross-examination testified as follows with regard to his conversation with Elmer: "I asked him whose rails they were, and he said his; that he had bought them from the North Western Railroad Company."

The summary-judgment statute, sec. 270.635, Stats., does not authorize the trial of contested issues on affidavits. Prime Mfg. Co. v. A. F. Gallun — Sons Corp. (1938), 229 Wis. 348, 355, 281 N.W. 697; Parish v. Awschu Properties, Inc. (1945), 247 Wis. 166, 173, 19 N.W.2d 276.

It was stated in Hanson v. Halvorson (1945), 247 Wis. 434, 437, 19 N.W.2d 882:

"Under the facts above stated and the array of cases above cited announcing the principles governing denial of a summary judgment, it is manifest that summary judgment was properly denied in the instant case because the issue of the sufficiency of Halvorson's lookout was a jury question. If the pleadings, taking them as they stand, make a case for trial by a jury, a summary judgment will be denied unless it appears from the affidavits that different conclusions of essential ultimate fact cannot reasonably be drawn. Nor will such judgment be granted where it does not appear from the affidavits that no circumstances exist that tend to support an inference of essential ultimate fact contrary to that contended for by the movant, nor where it does not appear that the conclusive effect claimed for the affidavits by the movant cannot be destroyed by cross-examination. Hardly ever can a summary judgment be granted upon affidavits unless the issue raised by the pleadings undeniably depends upon documents set forth by copy in the affidavit of the moving party which are not impeached by an opposing affidavit. Several improper resorts to the statute seem to have been made in reliance on Petrie v. Roberts, 242 Wis. 539, 8 N.W.2d 355, in which the court extended application of the statute far beyond what had theretofore been considered proper. That case went the limit, and the court is not disposed to extend the limit further."

In the Petrie Case a full disclosure of the facts was made to private counsel, the district attorney's office, and the state department of securities. This distinguishes it from the present case. There is nothing in the affidavit filed by the defendant Railway Company to show full disclosure to the prosecuting officer and advice of counsel thereon.

The order of the municipal judge binding Elmer over for trial is prima facie evidence only of probable cause. The motion of the district attorney to dismiss for insufficient evidence, and the order of the court based thereon dismissing the proceeding, is likewise prima facie evidence of lack of probable cause. Messman v. Ihlenfeldt (1895), 89 Wis. 585, 591, 62 N.W. 522.

It was stated in Lechner v. Ebenreiter (1940), 235 Wis. 244, 252, 292 N.W. 913:

"The discharge by an examining magistrate, or a nolle prosequi by the district attorney, except under circumstances as above stated [relating to compromises], is a sufficient termination of the action to support an action for malicious prosecution."

The record in this case discloses that different inferences may be drawn from the evidence as to the termination of the proceedings and as to probable cause, and the matter should be determined by a jury. Lechner v. Ebenreiter, supra. It was erroneous for the trial court to direct judgment upon a motion for summary judgment.

Plaintiff contends that the trial court was in error in entering and granting defendant's motion for summary judgment when defendant was in default for failure to answer. Defendant asserts that the motion for summary judgment presents the defenses as effectively as would the formal answer. In view of the above decision, it is unnecessary for us to pass on this question.

By the Court. — Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.