This action is for malicious prosecution, the petition containing four counts.
The first was based on the arrest and imprisonment of plaintiff on defendant’s affidavit charging him with having stolen two fat hogs.
The second was for the arrest and imprisonment of plaintiff on the charge of conspiring to murder defendant.
The third was for the arrest and imprisonment of plaintiff on the charge of being about to “commit murder against the person of” defendant.
The fourth was for procuring an indictment against plaintiff and causing his arrest and imprisonment on the charge of conspiring to murder defendant and with inciting and persuading others to murder him.
At the beginning of the trial the defendant objected to any testimony under either count in the petition for the reason that neither of them stated facts sufficient to constitute a cause of action.
The objection was sustained as to the first and fourth counts and overruled as to the second and third. The bill of exceptions then recites that, “plaintiff in support of said second and third counts introduced the following evidence, to-wit:” At the close of the evidence for plaintiff, the court against defendant’s objection and exception, permitted plaintiff to amend the first count in his petition, by inserting, by interlineation, the words “without probable cause.”
There was a verdict for plaintiff on th© first count for five hundred dollars, and for ¿¡.©fondant on each of the other counts.
Defendant appeals.
*408The court erred in permitting the amendment at the close of the plaintiff’s case. At the opening of the trial it sustained the objection to any testimony under the first and fourth counts. The evidence on part of plaintiff was then proceeded with under this ruling, and defendant had a right to develop his defence and cross-examine the plaintiff ’ s witnesses with reference to the case as it remained or existed after the court had excluded the two counts from consideration. If defendant had known the first count was to be brought back into the case he might have adopted a different line of defence, altogether.
Amendments may be made before final judgment, in furtherance of justice (sect. 3567, Rev. Stat.), but not under circumstances like those presented in this case. An amendment is properly allowed of a pleading upon which the parties go to trial, but is not to be permitted of a pleading that has been abandoned, stricken out, or ruled out of consideration in the case. According to the record before us plaintiff has been permitted to recover on the first count of the petition when no evidence was offered in support thereof; for immediately following the court’s action sustaining the objection to the first and fourth counts and overruling it as to the second and third counts, the bill of exceptions recites that evidence was then heard in support of the two latter counts, as above stated.
The instructions for the plaintiff, with the exception of the second, were properly given under the evidence. The second is faulty, in that it required defendant to prove he had probable cause and was not actuated by malice in having plaintiff arrested. It was not necessary to prove both the propositions. If defendant had probable cause it makes no difference as to his motives, whether malicious or otherwise. The existence of probable cause for plaintiff’s arrest would excuse defendant, notwithstanding he may have entertained malice. Sharp v. Johnston, 76 Mo. 660. On the part of defendant there *409were twenty instructions asked, of which fourteen were given, and yet he complains. . Those given, in our opinion, fairly cover the law for defendant. Some of those refused were perhaps proper enough in themselves, but as all is contained in those given, to which defendant is entitled, no error was committed in refusing the others. On the questions of evidence I can see no objection to the court’s action in not permitting plaintiff to state what Quick and Williams had testified to before the committing magistrate.
Plaintiff was permitted to show the financial condition, social position, standing and family relation of defendant. The financial condition was a proper subject of inquiry and it has been so held in this state, but I can see no reason for showing the social position or the family relation of defendant. I know of no authority justifying such evidence. His financial condition may be shown for the purpose of enabling the jury to measure his punishment in the way of damages. The amount that would sorely punish a man of small means might be of trivial concern to one of wealth. It.is for this reason such evidence is admissible. Such reason, however, does not reach the question propounded as to social and family relations.
The judgment is reversed and the cause is remanded.