On Petition for Rehearing.
Pee, Oueiam.Defendant has filed a forceful and able petition for rehearing. We have again reviewed the case, and feel impelled to adhere to our former decision.
We are entirely satisfied that an action will lie for the malicious prosecution, without probable cause, of a proceeding the object of which is to have a person adjudged insane. It has been held that the prosecution of such a proceeding, without probable cause constitutes •cruel and inhuman treatment within the contemplation of the laws relating to divorce so as to afford a ground for a divorce. Reichert v. Reichert, 124 Mich. 694, 83 N. W. 1008; Michels v. Michels, 120 Me. 395, 18 A.L.R. 510, 115 Atl. 161. It would seem that if the baseless prosecution of an insanity proceeding is a wrong of sufficient magnitude to justify the severing of the marriage tics, it ought to furnish a ground for the award of damages. And in our opinion it •constitutes a legal wrong for which the party injured is entitled to be compensated. See-Comp. Laws, 1913, § 7165.
The principal contention advanced in the petition for rehearing is that the court misapplied the rule announced in paragraph two of the syllabus. In the petition for rehearing it is said:
“We have no quarrel with the general principle enunciated by our *59court in this case, nor with the general principle on the admissibility of evidence relating to prior relations as enunciated by the textbooks and decisions, but we do contend that the evidence of friendly relations existing between the parties in this action was not admissible to prove malice and by no stretch of the imagination could it prove malice.”
As the name implies, malice is an essential ingredient of an action for malicious prosecution, and the authorities are unanimous in holding that there can be no recovery in such action unless it is established that the action or prosecution complained of was instituted maliciously. Existence of malice, however, is not enough to support such action. It must also be shown that the action or proceeding complained of was instituted without probable cause. The plaintiff, of course, has the burden of proving both malice and want of probable cause. Any evidence having a logical tendency to establish, on the one hand, the absence of probable cause, and on the other, the existence thereof, is admissible upon the question of probable cause (19 Am. & Eng. Enc. Law, p. 694) ; and whatever tends to show the motive or intent of the prosecutor in instigating or instituting the proceeding is properly admissible on the question of malice. Id. p. 695. So the plaintiff may introduce evidence tending to show that the defendant by the institution of the action or proceeding complained of sought to accomplish some personal or private end (id. p. 695). And the defendant may adduce any evidence having a logical tendency to rebut the showing made by the plaintiff. He may even testify “as to his motive and that he was not actuated by malice, ill will, or desire to harass the plaintiff in instituting or conducting the proceedings complained of, and that he honestly believed in the plaintiff’s guilt or liability.” Id. p. 695.
Malice need not be shown by direct and positive testimony. It may be established by circumstantial evidence, i. e., inferred from circumstances. “Malice, indeed, is a fact which in the nature of things is difficult if not incapable of positive, direct proof, and must therefore rest on inferences and deductions from facts, for which reason a wide range is permitted in adducing attendant circumstances that tend to throw any light upon the subject.” 19 Am. & Eng. Enc. Law, 695, 696. The malice necessary to sustain an action for malicious *60prosecution need not necessarily be ill will towards tbe plaintiff. Legal malice will support tbe action, and any unjustifiable motive constitutes legal malice. Kolka v. Jones, 6 N. D. 461, 473, 66 Am. St. Rep. 615, 71 N. W. 558. Judge Cooley says: “Legal malice is made out by showing that tbe proceeding was instituted from any improper or wrongful motive, and it is not essential that actual malevolence or corrupt design be shown.” Cooley, Torts, 185. Hence any evidence having any logical tendency to show tbe reason or motive which impelled the institution of the action or prosecution complained of is admissible. 19 Am. & Eng. Enc. Laws, 695.
The purported purpose of the complaint made by the defendant was to have an alleged insane person apprehended and incarcerated in the state insane asylum. The purported purpose was not only lawful but commendable. One of the. principal questions in the case is whether the defendant had probable .cause to believe, and whether he honestly believed, that the plaintiff was insane. If he did, of course, he has committed no actionable wrong. If, however, he had no probable cause to, and did not, so believe, then the proceeding was instituted without probable cause, and malice may be inferred from that fact alone. . Kolka v. Jones, supra.
How could the jury pass intelligent judgment upon the motive, or purpose of the defendant in instituting the proceeding, or upon his belief as to the truth of the charge of insanity made by him if they knew nothing of the prior relations between the parties ? Should the action of the defendant be judged by the jury as though he had made the charge of insanity against some strange or unknown woman who, in his absence, had entered his house and committed the acts on which the information in the insanity proceeding was based? To ask the question is to answer it. In order to judge of the mental attitude of the defendant, it was essential that the jury have as much knowledge as possible of any and all facts which had a reasonable tendency to influence his actions. The very existence of the relations which had formerly existed between the plaintiff and defendant, it seems to us, furnished some reason why the defendant might have desired to have the plaintiff incarcerated in the insane asylum, even though he did not believe her to be insane. He had just been sued for breach of' promise to marry. He had just returned with his wife, and they were *61about to take up tbeir residence on bis farm, — where be bad lived for so many years witb tbe plaintiff. Was it not mueb more to bis interest to have her thus taken out of tbe community and placed in an i nsane asylum than to sue her for damages or have her arrested for injuring bis property ? Tbe fact that tbe plaintiff may have committed certain unlawful acts would not justify tbe defendant in charging that she was insane and attempting to have her incarcerated in an insane asylum. In other words, it would not furnish probable cause for tbe inquisition for lunacy. Seasonable or probable cause depends upon tbe honest and reasonable belief of tbe party commencing tbe prosecution that tbe charge made is true. “Tbe question of probable cause applies to tbe nature of tbe suit; and tbe point of inquiry is whether tbe defendant bad probable cause to maintain tbe particular suit upon tbe existing facts-known to him.” Newell, Malicious Prosecution, p. 252. Defendant was permitted to introduce all of bis evidence relating to tbe wrongful conduct of tbe plaintiff. Not only tbe facts concerning tbe destruction of property but all of plaintiff’s acts witb respect to tbe defendant and bis wife were inquired into at great length. This evidence was all submitted to tbe jury, and was doubtless considered by them in determining whether defendant at tbe time be instituted the inquisition for lunacy entertained an honest and rea^-sonable belief that she was insane; also, whether in instituting tbe proceeding be w*as actuated by justifiable motives.
As stated in tbe former opinion, in making bis complaint to tbe state’s attorney of Nelson county and to tbe county judge of Walsh county, the defendant made no reference whatever to tbe relations which bad. previously existed between himself and the plaintiff; nor did be inform them of tbe then pending breach of promise suit. In other words, be did not make to them a full and fair statement of all tbe facts within bis knowledge at that time. On tbe contrary facts having a material bearing upon tbe very proposition then under consideration were not related. In view of all tbe circumstances we are not prepared to say, as a matter of law, either that- tbe defendant bad probable cause for instituting tbe insanity proceedings or that be wa,s not actuated by malice in so doing.
Rehearing denied.
*62Birdzell, Ch. J., and Christianson, Bronson, and Geace, JJ., concur.