(dissenting). The opinion in this case states that all the elements of a cause of action for malicious prosecution are established except these two: First, malice; second, want of probable cause.
The opinion -correctly states that malice may be inferred by the jury from want of probable cause, but that want of - probable cause cannot be inferred from any degree of express malice. The crucial question in the -case, therefore, is this: Has plaintiff sho-wn want of probable cause?
While it is true that where facts are undisputed, whether or not they constitute probable cause is a question of law for the court to decide, it is no less true that: “Where there is a conflict in the *604evidence bearing on the facts relied on to constitute probable cause, it is a question for the jury to determine whether these facts are sufficiently established, and this is so no matter hozo great the preponderance of the evidence is in favor of one party or the other.” 38 C. J. 505. In this case, the facts are in dispute. By their verdict the jury have found the facts in favor of plaintiff, and the evidence being conflicting, this court has no right to set itself in place of the jury, and by an attempted weighing of the testimony of different witnesses, undertake to say which witnesses should be believed and which not, and on which side the evidence preponderates.
Plaintiff testified that the first time defendant showed him this note, he toldl him that it was a forgery and handed it back to him there at the window in the bank. He further testified that on the day after the trial of the action on the note he was in a restaurant in Scotland, and defendant came in and ame over to the chair where plaintiff sat at a table, and after some remarks about the lawsuit Keyes said angrily to him: “I knew that was a forged note. If you had gone to a notary public and spent 25c and made an affidavit, it would have satisfied me, but you had such a great friend in Mr. Wilson I wanted to get you into court and make you spend some of your money, and have some fun with you.”
George Strong, a commercial traveler who was sitting at the same table with plaintiff on this occasion, testified that Keyes came over to the table where he was sitting with plaintiff and said: “Henry, if you had known enough to go before a notary public and spend 25c and had sworn to an affidavit that that was a forged note, it would have satisfied us because we knew it was a forgery, and you did not know enough to- do that, but you being a very good friend of Mr. Wilson’s, we thought we would bring you into court and have a little fun with you and spend a little'of your money defending yourself.” That Keyes appeared somewhat provoked and angry at the time. If this testimony does not show want of probable cause for instituting a lawsuit,- I cannot imagine what kind or quantity of evidence would be sufficient. These statements of defendant not only show a palpable case of want of probable cause, but also show that defendant was actuated by express malice. Defendant’s own version of this conversation in the restaurant, while varying somewhat from that of plaintiff and Strong, itself warrants' the inference that he 'did not commence the action in good *605faith, but rather in retaliation or revenge because he thought that plaintiff refrained from making an affidavit that the note was a forgery out. of a desire to shield his friend, Wilson, ex-cashier of the bank, from- prosecution for forgery. 'Defendant testified that, in that conversation in the restaurant, he said to plaintiff: “For a 25-cent notary fee you could have saved yourself all that trouble and expense, and I suspicioned it was a forgery from the first, but you would never say it was, and I know very well you did it because you wanted to protect your friend Wilson against the charge of forgery.”
The majority opinion says: “The evidence before us is -conflicting; but resolving every disputed question of fact in favor of respondent, the evidence discloses the following facts to- be clearly established.” It then proceeds to marshal the evidence, not in favor of respondent, but of appellant, omitting any mention of thfef testimony hereinbefore quoted in favor of respondent, and concludes that there was no proof of want of probable" cause, and that appellant’s motion for a directed verdict in his favor'should therefore have been granted.
In the majority opinion it is said that Kolka v. Jones, 6 N. D. 461, 71 N. W. 558, 66 Am. St. Rep. 615, is a “leading case” on the question of probable cause in actions for malicious prosecution. It is remarkable that it should lead in such divergent directions and to destinations so widely apart as it seems to do in the case at bar. Let us look at some, of the signposts (by way of quotation) along the way in 'which it leads : “Probable cause is, on undisputed facts, a question of law. Of course, it is necessary, not only that there should be ground for believing that there was a cause of action, but also that the person bringing the action should have so believed in good faith.” In the present case, on the testimony of plaintiff and Strong, the defendant did not believe in good faith that he had a cause of action, but said that he knew that he had not, and that he brought the action, not with the expectation of recovering on the note or of establishing its validity or invalidity, but for the purpose of making Brown spend some of his money in defending the action.
Again we quote from Kolka v. Jones: “In our discussion of the facts, we shall state those which uphold the plaintiff’s case; for, the jury having rendered a verdict sustaining his claim' for *606damages, we must assume that every controverted issue was determined in his favor, so far as it is necessary to so assume in support of such verdict.” See, also, Pierce v. Lyons, 42 S. D. 543, 176 N. W. 521. In the present case, the majority take the opposite course. They state the testimony which upholds the defendant’s case, which testimony the jury’s verdict shows they did not believe, and the majority evidently proceed upon the assumption that, while the jury has determined every controverted issue in favor of the plaintiff, it ought to have accepted as true and conclusive the testimony of defendant’s witnesses rather than that of plaintiff’s witnesses. This is diametrically opposed to the law as laid down in Kolka v. Jones, and as has been held and reiterated in scores of cases in this court.
The majority opinion quotes expressions to- the effect that want of probable cause must be “palpable” and “very clearly proven,” and concludes with the expression that respondent has not produced the “very palpable” and “very clear” proof which the law requires of him. Again turning to Kolka v. Jones, we quote: “To establish want of probable cause is to prove a negative, and it is elementary that to prove a negative requires only slight evidence. See Newell, Mal. Pros, page 282, § 17.” But even if very palpable and very clear proof is required, it is to the jury, and not to- this court, that the proof must be very palpable and very clear. In. criminal cases the proof is not merely required to be very palpable and very clear, but it must, establish the state’s case beyond a reasonable doubt. Yet we uniformly hold that if there is evidence tending to support the state’s case it is for the jury, not for this court, to say whether or not it is proved beyond a reasonable doubt. State v. Stumbaugh, 28 S. D. 50, 132 N. W. 666; State v. Leavitt, 28 S. D. 216, 133 N. W. 294; State v. Bailly, 29 S. D. 588, 137 N. W. 352; State v. Julius, 29 S. D. 638, 137 N. W. 590. The same rule applies, and ought to apply, to -civil cases. “The fact that the appellate court would have reached a different conclusion, had the judges thereof sat on the jury, or that they are of the opinion that the verdict is against the preponderance of the evidence, will not warrant the setting aside of a verdict based on conflicting evidence.” 4 C. J. 859. Several pages of citations are given in support of the law as thus stated, among which citations are a number from this court.
*607That defendant in the case at bar believed he had probable cause for instituting the suit on the note is incredible, if the testimony of plaintiff and Strong is true, and in view of the verdict of the jury, under all the authorities, this court is bound to assume that such testimony is true.
Wilson had' been cashier of the bank. Keyes seems to- have wanted to get Brown committed by affidavit to the statement that Wilson forged the note, and as Brown did not readily do this, Keyes sued him- on the note he said he knew was forged in order to make him spend some of his money in defending himself. In the majority opinion, it is said that Keyes sent Brown a letter saying that the records of the bank disclosed no evidence that this note had been paid, and unless Brown could show conclusive evidence of payment he would have to institute suit on the note; that Brown showed this letter to Schennum, a clerk of Keyes, and told him he did not owe the note, and if they made him any trouble he would fight back; that Schennum told Brown that he would have to see Keyes about it; and that Brown did not see Keyes nor answer the letter. From the statement that Brown did not see Keyes nor answer the letter it may fairly be inferred that the majority consider that Brown invited the litigation and-expense he was made to undergo, but the majority opinion does not state fully the facts on this point.
The evidence is undisputed- that when Brown was told by Schennum that he would have to see Keyes, the latter was out of town, and suit was commenced before he returned.
One more quotation from the leading case of Kolka v. Jones seems peculiarly apposite to the present case: “The malicious prostitution of legal remedies to subserve unworthy personal end's is not only an injury to the victim of the particular persecution, but also to society at large, if it is suffered to go unwhipped of justice. If the law will not punish such conduct, public confidence in the merits of our system of jurisprudence must inevitably be shaken, and the courts themselves will seem to have forsaken their high function as protectors and vindicators of invaded rights, and to have become, instead, the accomplices of evil men.”
The judgment and order of the trial -court ought to be affirmed.