I dissent.—The majority opinion holds that the evidence is sufficient to sustain the judgment. I agree with this conclusion and all others with the exception of that holding prejudicial error to have occurred in the exclusion of certain evidence which will be hereinafter considered. The only question of any moment not passed upon is the claim of excessive damages.
Ordinarily the amount of damages is left to the experience and common sense judgment of the jury, subject to appropriate instructions and, if necessary, a revision by the trial judge. Unless the award is so disproportionate to the injury suffered or harm done as to clearly show that the verdict was the result of passion, prejudice or other unlawful influence, a reviewing court will not interfere. (Rowe v. Rennick, 112 Cal.App. 576 [297 P. 603].) The members of a reviewing court, simply reading the record, might conclude that an award was disproportionate to the harm sustained, but, given an opportunity to observe the witnesses, their conduct, manner, etc., they might agree that the award of the jury was correct. There is evidence that plaintiff suffered greatly from humiliation and the loss of an opportunity to obtain a civil service appointment, etc. It does not appear, however, that the jury was actuated by any motive other than a desire to do justice. In my opinion, under the circumstances the amount of the verdict should stand.
The sole cause assigned in the majority opinion for reversal is the order of the trial court, made while defendant was a witness in his own behalf, striking out the following question and answer: “Q. Were you actuated by any malice when you had that warrant issued? A. Not at all.” It may be conceded that while the question calls for the conclusion of the witness, such evidence generally is admissible upon the theory that in an action similar to the present a defendant is permitted to show an absence of ill will or malice toward plaintiff. In other words, the intent of the defendant and his reason for obtaining the warrant are material to a determination of the issues involved, but the error in excluding *679evidence relative thereto is not necessarily prejudicial, particularly when the defendant’s attorney gives notice that he will introduce the evidence later in the trial.
In the present case the above question, if answered in the affirmative, would have been tantamount of a confession of judgment, so that the only matter to determine would be the amount thereof. The allegation in the complaint—that the defendant acted maliciously—is denied in the answer. The defense was presented with the purpose of establishing its contention that the warrant was not obtained by the defendant maliciously, and the defendant was subsequently permitted to show that he had no malicious intent. He was permitted to give his reasons for obtaining the warrant; and testified he told plaintiff that if he attempted to “sneak” out a warrant would be issued for his arrest; that subsequently, when he thought plaintiff was “on his way back to Denver,” the warrant was issued.
Injury is not presumed from error; the objecting party must affirmatively show that the error was prejudicial; not only that it affected the essential rights of a party, but resulted in a miscarriage of justice. (Vallejo etc. R. R. Co. v. Reed Orchard Co., 169 Cal. 545 [147 P. 238].)
In directing a reversal herein, the majority opinion relies particularly on the authority of Runo v. Williams, 162 Cal. 444 [122 P. 1082], which it states is the ruling which has been consistently followed in this state, citing Johnston v. Benton, 73 Cal.App. 565 [239 P. 60] ; Richter v. Neilson, 11 Cal.App. 2d 503 [54 P.2d 54]; MacGruer v. Denivelle, 113 Cal.App. 49 [297 P. 633]; Brown v. Newby, 8 Cal.App.2d 203 [47 P.2d 1076].
Johnston v. Benton, supra, and Brown v. Newby, supra, are not malicious prosecution cases, and hold only that where “intention” is an issue it may be proven by direct testimony. In MacGruer v. Denivelle, supra, a malicious prosecution action, the judgment was for defendants. The court merely held that in such a case one may testify to his motive and good faith.
In Richter v. Neilson, supra, p. 516, Buno v. Williams, supra, is approved to the effect that “a defendant is entitled to introduce any competent evidence to show that he had reasonable cause for instituting the proceedings or that even if he did not have such cause, he was not actuated by malice,” but a reversal was based, not upon refusal to permit defendant to testify with reference to the state of mind which *680prompted her to institute a criminal proceeding—as to which she did so testify—hut for the following reason (pp. 511-512): “. . . the evidence, in our opinion, is legally insufficient to establish a case of malicious prosecution, first, for the reason that the record reveals no direct evidence to prove that the defendant was actuated by any malicious motives, nor in our opinion were any circumstances proved from which an inference of malice may be reasonably inferred; and secondly, it affirmatively appeal’s that in causing plaintiff’s arrest defendant acted under the advice of the deputy district attorney and in the honest belief that plaintiff had committed the offense with which he was charged. ’ ’ In the Runo case, among certain questions approved was one going to honest belief in the guilt of the party charged with a criminal offense. So far as this question is concerned, the Supreme Court in Murphy v. Davids, 181 Cal. 706, 718 [186 P. 143], said: “The court sustained respondent’s objection to the question propounded by the attorneys for the defendants: ‘Did you honestly, in your conversation with them, state to them everything that you knew or had learned touching that matter?’ (Whether Murphy was guilty of embezzlement.) The objection went to the word ‘honestly,’ as calling for a conclusion of the witness. It was for the jury to determine from the evidence whether or not defendants related their knowledge of plaintiff and his acts honestly. The objection was properly sustained. His belief on the subject of plaintiff’s guilt would have been admissible (Runo v. Williams, 162 Cal. 444 [122 P. 1082]), but the question, in the form in which it was propounded, was vulnerable to the particular objection leveled at it.” In the Runo case, also, the court indicated that certain instructions were defective, and assumed the errors would be cured on a new trial. The judgment therein was reversed, not for one, but for two stated reasons, namely, the refusal to permit the defendant to testify on the subject of malice and the issue of probable cause. In the present case the sole ground noted in the majority opinion is the order striking from the record the question, and defendant’s answer that he was not actuated by “any” malice when the warrant was issued, the only reason for the court’s ruling being that the “answer would be the conclusion of this witness.” Technically the ruling was correct. (Murphy v. Devids, supra.) If there was no evidence in the ease relative to the purpose and reason for the issuance of the warrant, the conclusion reached in the majority opinion might be justifiable, but an *681examination of the record discloses that the defense presented evidence showing the “reason.”
There is nothing in the record indicating to my mind any probability that a different verdict would have been returned had the question and answer been allowed to stand, nor am I convinced from a reading of the record, including the evidence, that even conceding the ruling to have been erroneous, it resulted in a miscarriage of justice. In my opinion the judgment should be affirmed.
A petition for a rehearing was denied February 13, 1943. Ward, J., voted for a rehearing.
Respondent’s petition for a hearing by the Supreme Court was denied March 15, 1943. Gibson, C. J., Curtis, J., and Carter, J., voted for a hearing.