dissenting. I respectfully dissent from the majority’s “return to the thrilling days of yesteryear.” “Recently, this court set forth in succinct clarity the three necessary elements of malicious prosecution in the per curiam opinion of Border City S. & L. Assn. v. Moan (1984), 15 Ohio St. 3d 65. We observed that in order to prove the tort of malicious prosecution, ‘[i]t will be incumbent upon appellant to establish that these lawsuits were instituted maliciously, without probable cause, and, as a general rule, were terminated in appellant’s favor.’ Id. at 66.” Kelly v. Whiting (1985), 17 Ohio St. 3d 91, 254 (Celebrezze, C.J., concurring).
In today’s decision, the court adds an archaic requirement that the plaintiff also prove a “seizure of plaintiff’s person or property during the course of the prior proceedings.”
The few Ohio cases which recognize this ludicrous requirement trace their lineage to Cincinnati Daily Tribune Co. v. Bruch (1900), 61 Ohio St. 489, which holds at paragraph one of the syllabus:
“As a general rule no suit will lie for the malicious prosecution of a civil action, where there has been no arrest of the person or seizure of property.”
In apparent blind obedience, the majority follows Bruch, which it believes reflects “the so-called ‘English Rule’ of malicious prosecution actions in the civil context.”2 The majority reasons, without citing any supporting authority, that America’s large states “which, by both population and volume of litigation, are continually involved in all aspects of commercial law, and are more attuned to the realities of the business world and the concepts and reasoning * * * support the traditional rule.” In support of such a conclusion, appellee draws the court’s attention to stale decisions such as Schwartz v. Schwartz (1937), 366 Ill. 247, 8 N.E. 2d 668, and Publix Drug Co. v. Breyer Ice Cream Co. (1943), 347 Pa. 346, 32 A. 2d 413. *141However, Illinois and Pennsylvania, on cursory examination, no longer support today’s premise that an arrest or seizure is necessary.3 The majority recognizes that most jurisdictions have abandoned the requirement in favor of the Restatement4 or “American” standard. However, the majority apparently believes “backward” states, such as Michigan, California, Florida, etc. are not in tune with today’s policy considerations.5
*142I believe the Bruck rule is archaic, unduly harsh and, furthermore, not well-reasoned. It allows a suit for malicious prosecution in a case of a $10 seizure but denies relief for a party whose property was not seized but who nevertheless suffers a severe injury. As I noted in my concurring opinion in Kelly, supra: “While some courts have adopted such a fourth element, see dissent in Border City, supra, at 67, in my opinion the seizure of property or person merely concerns the extent of the plaintiffs damage, and its absence is not a bar to bringing an action. A contrary analysis could leave severely injured parties without a remedy and may in fact encourage tortfeasors to file malicious litigation knowing they are safe from recourse so long as they do not seize property or have their victim arrested.”
Especially disturbing, as well as cruelly misleading, is the majority’s comparison to our decision in Border City to help explain today’s inclusion of a fourth element. By no stretch of the imagination does Border City lend support to today’s result. In fact, the only reference to seizure or arrest as an element is contained in Border City’s dissent!
Although the Whiting decision offers some support to the majority’s conclusion, Whiting does not specifically delineate arrest or seizure as an element. Further, unlike this action, Whiting was an “arrest,” not a “seizure,” case.
Unquestionably, the better-reasoned view is that the seizure or arrest element merely concerns the issue of actual damages.6 Accordingly, I dissent from the majority’s resurrection of this “relic of a bygone era.” Lehnhausen v. Lake Shore Auto Parts Co. (1973), 410 U.S. 356, 365.
Whatever happened to those champions of stare decisis?
The “English Rule” was created by the judiciary following the enactment of the Statute of Marlbridge (52 Hen. III) in 1269. The statute enabled the successful defendant in the original maliciously prosecuted action to recover his costs in that same action. The courts also allowed damages in a subsequent action only when there was an arrest or seizure of property. 52 American Jurisprudence 2d (1970) 191, Malicious Prosecution, Section 9.
Interestingly, Great Britain no longer requires an arrest or seizure in the previous proceedings (civil or criminal) as a prerequisite to bringing a malicious prosecution action. England long ago rejected our majority’s so-called “English Rule.” See 25 Halsbury’s Laws of England (3 Ed. 1958), at 348 and 367. Rather, “[a] plaintiff must expressly state in his statement of claim (1) the previous proceedings of which he complains; (2) that in so far as they were capable of so doing they terminated in his favor; (3) that there was no reasonable and probable cause for the defendant instituting or carrying on those proceedings; (4) that the defendant was actuated by malice; (5) that he has suffered damage * * Id. at 365 (references to footnotes omitted).
For example, the requirement of arrest or seizure to sustain a cause of action for malicious prosecution was specifically abrogated by the Pennsylvania Legislature in 42 Pa. C.S.A. Section 8351 enacted December 19, 1980. See Dietrich Industries, Inc. v. Abrams (Pa. Super. 1982), 455 A.2d 119, 122-123 and fn. 4.
Similarly, under Illinois law today, a complaint for malicious prosecution must allege five distinct elements: (1) institution of judicial proceedings by defendant; (2) lack of probable cause for those proceedings; (3) malice in instituting the proceedings; (4) termination of prior cause in plaintiff’s favor; and (5) suffering by plaintiff of some special injury. Lyddon v. Shaw (1978), 56 Ill. App. 3d 815, 372 N.E. 2d 685.
“Special injury has been held to be that injury ‘beyond the anxiety, loss of time, attorney fees, and necessity for defending one’s reputation, which are an unfortunate incident of many (if not most) lawsuits.’ ” (Citation omitted.) Doyle v. Shlensky (1983), 120 Ill. App. 3d 807, 458 N.E. 2d 1120, 1129. Far from requiring an arrest or property seizure, Illinois only requires a showing that the plaintiff incurred special damages as a result of the maliciously brought proceedings.
In short, the conclusion reached by today’s majority is void of support and empty of merit.
Section 674 of the Restatement of the Law 2d, Torts (1977) 452, General Principle, states: “One who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other from wrongful civil proceedings if:
“(a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and
“(b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.”
The Reporter’s note to this section states:
“Although the general principle in this Section was a minority rule at one time, it is now a clear and growing majority rule followed by some 30 states. With a few not entirely clear, they include Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Vermont, Virginia and West Virginia.” Id. at Appendix, 438.
Cf. Antcliff v. June (1890), 81 Mich. 477, 45 N.W. 1019 (It is “* * * not necessary, in an action for malicious prosecution of a civil suit, that the person should be molested or property seized, if it appeared that the suit was malicious, and without probable cause, and the party has been injured or damaged thereby. ” (Emphasis added.) Id. at 1022; Bertero v. National General Corp. (1974), 13 Cal. 3d 43, 118 Cal. Rptr. 184, 529 P. 2d 608 (Defendants reminded the California Supreme Court that malicious prosecution is not a tort favored by the law. “This convenient phrase should not be employed to defeat a legitimate cause of action. We responded to an argument similar to defendants’ over 30 years ago, reasoning, ‘* * * we should not be led so astray by the notion of a “disfavored” action as to defeat the established rights of the plaintiff by indirection; for example, by inventing new limitations on the substantive right, which are without support in principle or authority * * * [Citation *142omitted].’ ” Id. at 615-616.); Levy v. Adams (1939), 140 Fla. 515, 192 So. 177, 178 (“[A]n action for malicious prosecution may be maintained for the bringing of a civil action maliciously and without probable cause although there is no arrest of the person or seizure of property or other special circumstances warranting the action.”).
Ohio’s appellate courts indicate their disfavor of Bruck but find themselves bound to adhere to Bruck “until such time as the Supreme Court overrules it.” Battig v. Forshey (1982), 7 Ohio App. 3d 72, 74; Dakters v. Shane (1978), 64 Ohio App. 2d 196, 198 [18 O.O.3d 150). See, also, Prosser’s criticism, Prosser & Keeton, Law of Torts (5 Ed. 1984) 889, Section 120; W.D.G., Inc. v. Mutual Mfg. & Supply Co. (App. 1976), 5 O.O. 3d 397, 401.
Ohio’s legal commentators are also disturbed by the harshness of the Bruck rule. For example, as regards the injustice inflicted on the members of our police forces, one recent reviewer notes: “Many officers mistaken [sic] believe that when sued for violating a suspect’s rights, the officer may countersue for malicious prosecution. This cannot be validly done in Ohio. Similarly, even if the suit against the officer is dismissed, the costs incurred by the officer cannot be recovered in a later suit for malicious prosecution. Only if the officer is arrested or if the suspect causes the officer’s property to be seized, or a lien placed against the officer’s property, may the officer sue the suspect for malicious prosecution. The officer is in fact injured, especially his reputation, but there is no way to obtain relief or financial recovery. Pity!” Palmer, Ohio Criminal Law Review (Vol. 3 No. 6, 1985) 325.