(dissenting in part). I am: not disposed to dissent from the holding of my Associates that a new trial should be awarded on the ground of excessive damages. But I cannot .concur in the views announced in 'Other portions of the opinion, and therefore deem it my duty to state somewhat fully the reasons ■for such dissent.
At the beginning the majority opinion elaborates a proposition which neither appellant nor respondent has controverted, viz.: That the information filed before the magistrate does not allege facts constituting the crime of abduction, in that it fails ■to allege the specific intent required by some one of the several sections of the 'Criminal Code referred to. Without stating even the substance of the evidence touching that phase of the case, the- majority opinion asserts that there was evidence from which .the jury might have found that defendant bad probable cause for believing plaintiff “had abducted his. daughter.” A most careful examination of the record will demonstrate that it contains not a word of evidence even tending to show that defendant at the *126■time be swore- to the complaint in justice-court, or at -any other time ever had any grounds whatever 'for believing that plaintiff had abducted his daughter, either with criminal intent, or under circumstances which would constitute even a civil injury to defendant’ ‘s- rights as a parent. In the first place the defendant himself testified that the daughter -was 22 years of age at the-time of the alleged abduction; .that the day she left home he and his daughter had' trouble over her- wearing a costume to' which h'e objected, and that he told her “she had to take that waist off or she couldn’t go to the dance,” and that she bad “to shoiw what clothes she wears or she can’t go.” His own evidence is that the daughter and Miss Roberts-, a teacher who hoarded at their house, left home that night on foot, -arid went .to a neighbor’s (Mr. Heeht’s), and asked his boy to take them over to the town of Dimock, where-a‘Thanksgiving dance was on, and- that he drove them there; that Miss Roberts came home the next day and told the mother that Katie said she “-wouldn’t come back for the best half section of land! in Davison county,” but wouldn’t tell her where Katie was. Defendant also testified that after Katie left home that time, he never bad any control over her; that “she comes and goes when she wants to-.”
Upon these facts, and there are no others material to that iss-ue, the statement in the majority opinion to -my mind i-s- clearly erroneous, whether the word “abduct” be considered as intending a criminal charge or merely -a civil injury. Defendant’s own -evidence shows that the daughter was of adult age and had the legal right to leave his home whenever, and to. go- wherever, she ohose. And even if it were conceded -that plaintiff induced her to defy her father’s assumed, authority and leave his home against hisl will, such -act would not -amount either to the crime, or to the civil injury known as- “abduction.” On the contrary, the evidence! shows beyond the possibility of dispute that the -daughter rebelled ■when the father denied her right to- attire herself' as she ohose, and that she willfully and voluntarily left his home and went to a neighbor’s arid! induced him to carry her and the teacher to’ D'imock -where the Thanksgiving dance was held. There is not a syllable of evidence in the record even tending to- show that plaintiff had -anything to dto with this action on her part or was *127the cause of or responsible for it. The trial court -therefore w-as right in instructing the jury as it cLidi that:
“There is no legal nor probable right nor reasonable cause appearing from the evidence■ in this case, which- would authorize and warrant him (defendant) in filing 'this information in the justice court charging the plaintiff with -abduction-, arid no legal cause appearing from:-the evidence for his -arrest under it. * * *”
In this 'connection- the court instructed the jury- as to- proof of malice:
“The question I will submit -to the jury however, is -whether or not the motive -on the -part of the defendant in instituting and instigating this prosecution was malicious. * * * Now the making use of prosecution, not for the ostensible purpose for which it is taken -out or instituted, but some other purpose for whi-ch it is an illegal or unlawful -means, may be a ¡basis if the jury see fit, for inferring malice. And in this case, if it was the purpose of the-defendant in -instituting these criminal -proceeding’s against the palin-tiff to compel the plaintiff to disclose the whereabouts of his daughter, such purpose was unlawful, and constituted no justification f-o-r instituting the criminal proceedings. In other words, he -had no right to resort to unlawful criminal proceedings -for the purpose of obtaining .information which he wanted to get. * * * It is necessary that there should have been malice, either legal or actual, in the prosecution of such an -action. The jury, however, are permitted.and (they have the power and may, if in their judgment it -should be done, infer malice from want of probable cause. That -is, -they may infer from the fact that the suit was brought and that the prosecution was -unfounded and illegal in law, may infer that it was brought maliciously for the purpose of injury, but that is a conclusion not of law but of fact that you may draw, or not draw, as you may believe you -ought to under all the evidence in the case. Legal malice is made -out by showing that the proceeding was instituted for an improper or wrongful motive, and it is not essential that an actual malevolent or corrupt design be shown.”
The majority opinion- says.:.
“The trial court assumed for all purposes of the trial that the allegation — that defendant. 'made complaint charging the plaintiff with th-e cri-m0- -of abduction’ — had been proven * * *” *128and -that ‘‘.this ¡rule would' 'have been correct if the premise had been correct.”
The instruction actually given 'the jury was as follows:
“It ie undisputed in this case that this defendant filed this information in justice court, and' proceedings for abduction- were instigated! and instituted against the plaintiff, and he was arrested upon the warrant issued by this justice, and so far as this case is concerned the information that was filed in that case substantially charges him with the -crime of abduction.”
I assert that the overwhelming -weight of authority supports the proposition that one who falsely, maliciously, and without probable cau-se files or causes to be filed, and causes an- arrest and .prosecution upon, what purports to> be a criminal information, but which, fails- to state facts constituting a criminal offense, cannot urge defects in such information as a defense to. an action for. malicious prosecution- thereon. The majority opinion seems to assume that the liability for malicious prosecution depends upon the sufficiency of the allegations of the complaint alone, and ignores what was done under the complaint, viz.: The issuance of a criminal warrant, and the -arrest of the plaintiff as for a •crime. The instruction: as given properly covered the whole evidence. The reasoning of the majority opinion is that there is nothing to show that defendant intended to charge plaintiff with anything -except wh-at -he -swore ¡to. -in the complaint, viz.: The civil -injury called “abduction,” and therefore the trial court erred in assuming' for -all purposes of the trial that -the allegation that -defendant “made complaint charging the- plaintiff with the crime of abduction” had! -been, proven. This conclusion, might be -correct -if the complaint filed were the only evidence to- show that defendant intended! .to -charge -plaintiff with abduction as -a crime and not as a civil injury. But the undisputed' evidence taken as a whole conclusively shows that the defendant intended: to charge '■plaintiff with the crime -o-f abduction, and therefore the trial court did not' err --in: assuming .and charging that for the purposes of the trial- the defendant -ha-d “made c-omplaint charging the ¡plaintiff with the crime of abdlucition.”
The majority opinion insists ¡that the case at bar be distinguished from: D-ennis v. Ryan. That case holds that when a complainant tnuthfutty states -all facts to a prosecuting officer, *129who 'himself mistakenly assumes that'-’such facts constitute'a crime, 'the -complainant should' not' -be ■ held responsible far maliciau-s prosecution. The indictment in that casé charged an erasure of an indorsement of payment on a bond, -to be criminal forgery; the court held it was not, but "says: ’ ’■
“That the complaint - was false, and maliciously made, ’is established by the 'verdict of the jury, and now that he has put ■in motion the officers of the law, and by his false and malicious statement it does nbt’ either on principle o-r authority-, lay :with him to say. by' way of -defense that the injury resulting- 'from' the wrong committed by him would not' have been consummated but for'the .innocent mistake- of those imposed upon by him.”
The court 'thus squarely held that the test of liability did’-not He in the insufficiency of the indictment to- state facts constituting a crime, but in' the 'false and-malicious- charge-made''without probable cau's-e,' td' the prosecuting officer. -
That the defendant in the case at- bar intended to charge plaintiff with criminal abduction' in some form' and to- cause his arrest as for a crime, is absolutely clear. The undisputed evidence of the justice is that -defendant— ' ’ ’■
“told a little, before the -papers were- drawn-up, abo-ut this transaction as -he understood it. He said -the -girl wa-s gone and the boy took her, and he wanted- the boy arrested. * *' * He wanted them papers and) he wanted them right -off.”
Defendant’s' son testified that he heard his father tell the justice to -bind plaintiff Over to the circuit 'court “because- he wouldn’t tell where the girl was,” and!- that the justice said “he didn’t know "how1 to fix it in order to- find out the evidence — what I mean to find out where- Katie' was.” Further than-" -this, ” defendant himself ''testified! that lie went to the justice office-to’ge't the warrant, and -in stating-'his conversation' With the justice's-aid-:
“I told him my daughter went away, and if th-ere was any way to get the young roan to testify where he left the girl. Fié said,, T cáh-fine him ori’ your statement.’ I Said, T don’t want him fined, I' -want him to testify'where the girl "is.’' Finally-he made out a blank there.”- '■ " . .-*
That'defendant falsely and !without" probable' 'cause”and'*fnr a wrongful and! illégal purpose, intended'by and-did charge pl-affi-*130tiff with'bbe crime of “abduction,” and did1 cause his arrest upon a criminal warrant, appears beyond’ dispute. The defendant’s own testimony clearly shows, that he filed the complaint without probable cause, and caused the -arrest on a criminal warrant, for the purpose of compelling’ plaintiff “t-o> testify where- the- girl was.” That the falsity of the charge, the want of probable cause, and the -defendant’s illegal and wrongful purpose in causing the arrest, were sufficient under the instruction of the court -to sustain a finding of malice, is -too clear to' require discussion. The charge of abduction in any sense or form was absolutely false. It was made without probable cause and for a wrongful- and illegal purpose, -and a finding of malice by the jury s-hould not be disturbed.
T-h-e majority opinion says:
“Instructing the jurors that they might infer malice from want o-f probable cause, and then instructing them that want of probable cause was -proven-, left it possible for the jury -to find m-alice without any -oonsideiration of the facts from which the jurors might ih-a-ve found probable cause.”
If -the instruction given had 'been as assumed in- this statement, there might -be some ground' for guessing that it might have -been prejudicial because- it was passible for the jury to find malice without considering -other facts in evidence. But the trial court did- not so instruct ¡t-h-e jury. It did instruct them that want of probable cause was -a conclusion of fact from which they might -o-r might not -draw t-he inference of malice, and that:
“It is for you, gentlemen of the jury, toi say, assuming that (want of -probable -cause) to- be -true, whether from that, and all the facts and circumstances surrounding the entire transaction, the -defendlant in this case was guilty -of malice, as I -have defined it to yo-u, in instituting this proceeding.”
I think nothing further need be said o-n this po-int. However involved in its logic, the majority opinion -certainly hold's nothing less than that insufficiency of the complaint to- charge a crime may amount to- at least a- partial -defense as to- damages. But the reasoning of the decisions, under the great weight of authority, is that ¡the actual damages resulting from the disgrace, vexation, and expense attending a 'prosecution “as for a crime,” on an information charging wh-at technically would amount only *131to -a civil injury, are the same as though a crime had been sufficiently charged. The courts hold that the damages resulting from a false and malicious charge and the vexation, disgrace, and expense of a prosecution are not measured by the sufficiency 'or insufficiency of the complaint upon which- the prosecution is based. For whether the indictment or information he good or bad, the plaintiff is equally subjected to the vexation and disgrace of it, and is put to- the same expense in defending himself against- it. The following cases, and many others which might be cited, illustrate the views and reasoning of the .courts approving the majority rule. Shaul v. Brown, 28 Iowa, 37, 4 Am. Rep. 151; Stancliff v. Palmeter, 18 Ind. 321; Pippet v. Hearn, 7 E. C. L. 346; Mask v. Raws, 57 Miss. 270; Streight v. Bell, 37 Ind. 550; Schattgen v. Holmback, 149 Ill. 646, 36 N. E. 969; Stocking v. Howard, 73 Mo. 25; Barton v. Kavanaugh, 12 La. Ann. 332; Mpls. Threshing Machine Co. v. Regier, 51 Neb. 402, 70 N. W. 934; Anderson v. Nelson, 25 Ont. 91; Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101; Finn v. Frink, 84 Me. 261, 24 Atl. 851, 30 Am. St. Rep. 348; Potter v. Gjertsen, 37 Minn. 386, 34 N. W. 746; Johnson v. Daws, 5 Cranch (C. C.) 283, Fed. Cas. No. 7,382.
In conclusion I will only s>ay -that I shall await with much interest and some curiosity a successful effort of the trial court to apply the reasoning and logic of the majority opinion upon the new trial.