concurring in part and dissenting in part.
For the reasons herein discussed, I respectfully dissent from certain portions of the majority opinion. This action involves three consecutive interrelated intentional torts. They are in order of occurrence: Assault and Battery, False Imprisonment and Malicious Prosecution. Three closely connected defendants, named in each count, are: defendant # 1, the security guard (Griffith) employed by defendants # 2 and # 3 to patrol their shopping center property where the assault occurred; defendant # 2, East Hills Merchants Association (East Hills), an association of merchants in the shopping center; and defendant # 3, Belt Highway Investment Company (Belt Highway), owner of the shopping center.
COUNT I — ASSAULT AND BATTERY
Under the assault count, the jury awarded its verdict for plaintiff against each defendant in the amount of $1,500 actual damages, but the trial court erroneously refused to submit proffered instructions on punitive damages. I concur in the decision of the majority affirming the judgment for actual damages, and reversing and remanding for trial on punitive damages. However, I do not agree and must dissent from the majority’s view concerning the level of malice and heightened burden the plaintiff must assume when submitting the punitive damage issue on retrial. In this regard, I submit that plaintiff should properly be permitted to submit the existing instructions, MAI 10.01 and 16.01, for the jury’s direction when deliberating the issue of punitive damages.
COUNT II — FALSE IMPRISONMENT
In Burnett v. Griffith, 739 S.W.2d 712 (Mo. banc 1987) (Burnett I), this Court ruled that East Hills, and presumably Belt Highway, were entitled to judgment notwithstanding the verdict on the false imprisonment count because the claim was submitted on a theory of respondeat superi- or and the jury found for their employee, Griffith. This ruling rested on the holding of McGinnis v. Chicago, R.I. & P. Ry. Co., 200 Mo. 347, 98 S.W. 590 (1906), which stands for the proposition that plaintiff could not recover on the theory of respon-deat superior against the employers, East Hills and Belt Highway, as to this Count II, because their employee had been successful before the jury. Further, Burnett I stated that plaintiff to preserve the point of inconsistent verdicts (i.e. inconsistent as to the verdict in the assault claim) should under Douglass v. Safire, 712 S.W.2d 373 (Mo. banc 1986), have objected before the jury was discharged.
COUNT III — MALICIOUS PROSECUTION
However, unlike the false imprisonment count, the malicious prosecution claim was submitted on an entirely different theory than respondeat superior. This claim was submitted on the basis of the acts of the three defendants having been the instigating forces for the commencement of a criminal proceeding (misdemeanor) against the plaintiff which terminated in favor of the plaintiff and in so doing the defendants acted maliciously without reasonable grounds when instigating that action. The jury returned a verdict on this count in favor of Griffith but against East Hills and Belt Highway for $20,000 actual damages. The trial court had erroneously refused to submit the issue of punitive damages through plaintiff’s proffered appropriate instructions. The principal opinion notes that in Burnett I, this Court ordered the cause retransferred to the Missouri Court of Appeals, Western District, with the admonition:
that a jury could render a verdict against East Hills, despite a verdict in favor of Griffith, if the evidence showed conduct by other officers, agents or employees of East Hills sufficient to prove the elements of malicious prosecution (slip op. at p. 5).
*793The same, of course, applies to consideration of the liability for defendant # 3, Belt Highway. The $20,000 verdict against East Hills and Belt Highway was properly entered notwithstanding the fact that a verdict was rendered for Griffith. This is so because (as noted above) the claim was submitted on the basis of the acts of the three separate defendants as having instigated a judicial proceeding against the plaintiff, and there is ample evidence to support the finding that East Hills and Belt Highway were involved as instigators of the prosecution. The majority erroneously declares that plaintiff did not make a sub-missible case as to Count III. In so doing, the majority fails to acknowledge the abundant proof revealed in the record supportive of the verdict and studiously avoids these favorable inferences which the jury could reasonably have drawn when finding for plaintiff and awarding damages against the two defendants on this count. This Court is not permitted so to do. In reviewing a trial court’s ruling on a motion for judgment notwithstanding the verdict, we must examine the evidence in a light most favorable to the plaintiff and he is given the benefit of all reasonable inferences from the evidence, disregarding evidence to the contrary. Stark v. American Bakeries Co., 647 S.W.2d 119, 121 (Mo. banc 1983). Somehow the majority has missed this time-honored rule which provides the inflexible standard of appellate review for our consideration of juries’ verdicts.
Let us turn now to the six elements of an action for malicious prosecution and examine the evidence permitting submission of this issue.
(1)Commencement of the prosecution against the plaintiff. There is abundant, undisputed proof that the criminal prosecution of Karl Burnett occurred in the Municipal Court of St. Joseph in which he was charged, tried and acquitted for the following crimes:
Plaintiffs Exhibit #1
"... that on or about the 9 day of July, 1983, at 2300 hrs., within the corporate limits of St. Joseph, at or near East Hills Shopping Center did then and there unlawfully disorderly conduct (sic) by using loud and abusive language in a public place ... in violation of Sec. 16-129B8 of the code of ordinances of the City of St. Joseph, Missouri. Case No. 00371867”
Plaintiffs Exhibit #2
“... that on or about the 9 day of July, 1983, at 2300 hrs., within the corporate limits of St. Joseph, at or near East Hills parking lot did then and there unlawfully willfull misuse of premises (sic) by being on East Hills parking lot drinking beer. In violation of Sec. 16-147 of the code of ordinances of the City of St. Joseph, Missouri.”
Plaintiffs Exhibit #3
“... that on or about the 9 day of July, 1983, at 2300 hrs., within the corporate limits of St. Joseph, at or near East Hills parking lot did then and there unlawfully disorderly conduct (sic) by obstructing and resisting the performance of a police officers’ duties when known to be such by refusing to place his hands on vehicle and [cursing the officer]. In violation of Sec. 16-129B6 of the code of ordinances of the City of St. Joseph, Missouri. Case No. 00371867.
(2) Termination of the proceedings in favor of the plaintiff. Karl Burnett was prosecuted as a defendant in the criminal cause #00371867 (on charges set forth above) in the Municipal Division of the Circuit Court of St. Joseph, Missouri, and at the close of the evidence, on October 12, 1983, judgment was entered for the defendant, having been found not guilty, and he was discharged. Plaintiff’s Exhibit # 10, a transcript of the criminal proceeding in the Municipal Court of St. Joseph of October 12, 1983. There is no scintilla of contrary evidence as to this element of the claim.
(3) Instigation of the criminal prosecution by the defendants. The majority opinion disposes of the malicious prosecution claim by asserting that the element of “instigation” by the defendants was not satisfied because there was no evidence *794that East Hills and Belt Highway were involved. However, viewing the evidence most favorable to the verdict, there is ample evidence for submission of this element of the claim and accordingly to support the jury’s verdict.
“To render one liable for malicious prosecution begun by another it must appear that he was the proximate and efficient cause of putting the law in motion.” Palermo v. Cottom, 525 S.W.2d 758, 764 (Mo.App.1975). The evidence viewed in favor of the plaintiff reveals that the defendants performed “affirmative act[s] in connection with the prosecution,” and that the conduct of East Hills and Belt Highway reached far beyond “[m]ere passive knowledge of or acquiescence in the acts of another.” Id. Liability for malicious prosecution may be premised upon “affirmative action by way of advice, encouragement, etc.” Hunter v. Karchmer, 285 S.W.2d 918, 929 (Mo.App.1955).
There was evidence showing that it was the avowed purpose and published policy of defendants East Hills and Belt Highway that persons who loitered, sped, drove carelessly or otherwise caused problems on their premises should be “ticketed” and prosecuted. The written policy and stated purpose was conveyed to the city authorities in writing as early as August 17,1981, by a letter of that date from the Vice President of East Hills (Plaintiff’s Exhibit # 5) to the Chief of Police stating that East Hills and Belt Highway requested the assistance of the police department “in patrolling our parking lot and keeping it clear of vehicles and occupants that are loitering.” The letter goes on to state that the defendants East Hill and Belt Highway would like violators of traffic offenses such as “speeding, reckless driving, etc.” issued tickets. Consistent with this direction and request, from which may be inferred a purpose that these matters be taken to a conclusion and accused persons prosecuted, Patrolman Litton, called by the defense, testified that the owners of the shopping center “told us what they would expect ... and for us to use the city ordinance and straighten it out and that is what we did.” This intent to arrest and prosecute further manifested itself when defendants East Hills and Belt Highway employed defendant Griffith to carry out their announced intent. As the proof unfolded this purpose to prosecute was not only communicated to the city authorities but the record shows the city acted affirmatively thereon and, more specifically, prosecuted Burnett (plaintiff here) in response to East Hills and Belt Highway's above described request in writing. A further factor for the jury’s consideration was that East Hills and Belt Highway, after they knew the arrest of Burnett had occurred, could have at any time stopped the prosecution by simply telling the city attorney not to proceed. This they did not do.
These facts alone would seem to suffice to submit the issue of instigation, but there is more. The on-site manager for these defendants, Ms. Betty Hartman, stated the prosecution would go forward because it was time to “make an example” of persons such as Burnett. This occurred when Burnett came to her shortly after his arrest and when he had been released on bail. He tried to explain to her that there was no probable cause to prosecute but she imperiously told him the case would proceed.
The record discloses how all the foregoing facts were developed. In the examination of Mr. Pendergast, city attorney who prosecuted the criminal action against Burnett, these questions and answers appear:
Q: “If the owner does not request it or changes his mind and gives you written documentation he doesn’t wish the person prosecuted for an event (emphasis supplied), the city would not have any individual interest in pursuing that?”
A: “That is my understanding from the police department.” With this information before it, the jury knew that it was requested that there be the sort of enforcement that was undertaken here by written request of the defendants, Belt Highway and East Hills. Plaintiff’s Exhibit # 5.
*795Additionally, in the trial of the case at bar, the city attorney, Pendergast, admitted he knew it was defendant Griffith (an employee of East Hills and Belt Highway), who had filed the arrest report which Pen-dergast employed as the basis for the infor-mations filed against Burnett. He further admitted that as the criminal prosecution proceeded, East Hills and Belt Highway did not request that the proceedings stop and the jury could reasonably conclude that Belt Highway and East Hills intended that the prosecution proceed. The evidence shows those defendants did not change their clear purpose to prosecute nor request that the cause be dismissed or otherwise terminated short of final prosecution. In sum, East Hills and Belt Highway created a situation by their open-ended direction to the city authorities so the police would proceed with the prosecution of persons such as Burnett as they had specifically requested, and the city acted upon the declared statement of intent that the prosecution so proceed. The jury could conclude that defendants East Hills and Belt Highway purposefully did not withdraw the action or request its cessation which they were empowered to do by simply communicating a change of intent to the city attorney.
The fact of instigation is strengthened by testimony concerning Betty Hartman, the local manager who was employed jointly by Belt Highway and East Hills and was, as she testified, “the on-site person who took care of things there.” Shortly after his arrest and release on bail, Burnett came to Hartman’s office to tell of his plight and explain why there was no probable cause to proceed. He tried to show her how he had not done anything wrong and asked that they not press the charges. She replied that she had talked to Roger Griffith and was not going to change her mind about anything, and “she felt it was time to make an example out of this (meaning the prosecution of Burnett) (emphasis supplied).” Burnett, in an attempt to dissuade her, explained the hardship it would cause him and that “if she was going to take me to court, I would have to hire an attorney to defend myself.” Nevertheless, the charges were pressed and he was forced to hire an attorney who represented him in municipal court and successfully defended that prosecution.
The defendants’ conduct and intention, as exemplified by their on-site manager Hartman, is remarkably similar to that of the defendant in Weniger v. Famous-Barr Co., 686 S.W.2d 553 (Mo.App.1985), where the plaintiff was arrested on the basis of a statement made by Famous-Barr’s security guard, and when the police called Famous-Barr to ask if it would reconsider pressing charges, Famous-Barr refused to do so. There the court held that “[a]s there was a question of fact as to who instituted the suit the issue of causation was for the jury.” Id. at 555. See also Lipari v. Volume Shoe Corporation, 664 S.W.2d 953, 955-56 (Mo.App.1983).
Similarly in the case sub judice, the actions of Belt Highway and East Hills speak for themselves. The jury could draw from the evidence the reasonable inference that the underlying instigating force was indeed the defendants, East Hills and Belt Highway, and that they were “the proximate and efficient cause of putting the law in motion.” Palermo v. Cottom, 525 S.W.2d at 764. The principal opinion neither accepts as true the evidence supporting the verdict nor the favorable inferences that may be drawn therefrom.
(4) Malice. There is abundant evidence for the jury to conclude that malice was present. First, there was the express indication of malice in Betty Hartman’s statement, as the on-site manager at East Hills, that she felt the matter should be pressed ahead because “it was time to make an example out of this.” The requisite malice for this cause of action is that “the proceedings must have been initiated primarily for a purpose other than that of bringing an offender to justice,” Sanders v. Daniel International Corporation, 682 S.W.2d 803, 814 (Mo. banc 1984), and Hartman’s statement manifests a frame of mind and *796purpose from which the jury could infer East Hills and Belt Highway’s malicious intent. Further the jury could find that the assaultive conduct of all three defendants found to have occurred in Count I (the assault) supports the reasonable inference that these defendants employed abusive measures to control their parking lot rather than merely bringing to justice those whom they legitimately believed were violators of the city ordinances.
(5) Absence of probable cause. On this related point, the jury could reasonably have concluded that there was an absence of probable cause for the prosecution. Though the termination of the prosecution in favor of Burnett is strong evidence of the “absence of probable cause,” it is not in all cases conclusive. Young v. Jack Boring’s Inc., 540 S.W.2d 887, 895 (Mo.App.1976). Officer Griffith first approached Burnett on the pretense that he was willfully misusing the premises, which was defined as being on the premises and refusing to leave after being requested to do so, or congregating or loitering in groups on the shopping center premises. The favorable evidence undergirding the jury’s verdict demonstrates that there was no probable cause to believe this ordinance had been violated, for Burnett was returning to his car when he met other individuals who complimented him on his car and were simply discussing the car when Griffith arrived. Burnett made an effort to leave as requested but was prevented from doing so. As to the charges of disorderly conduct by using loud and abusive language and obstructing the performance of a police officer’s duties, the evidence favorable to the verdict again indicates an absence of probable cause, for Burnett testified that he did not threaten or abuse the officer and did not physically resist arrest. On the contrary, as shown by the jury’s verdict on the assault claim, Burnett was unreasonably manhandled by Griffith1 and the jury rejected defendants’ affirmative defense that Griffith “used only such force as was reasonable and necessary to arrest plaintiff.” These facts are cogent to the issues of both malice and want of probable cause.
Clearly, proof of each element of malicious prosecution is to be found in the record before us. Accordingly, I must dissent from Part II of the principal opinion and conclude that the trial court did not err in denying East Hills and Belt Highway’s motion for judgment notwithstanding the verdict.
The judgment of the trial court upholding plaintiff’s verdict for malicious prosecution against the defendants, East Hills and Belt Highway, and the denial of these defendants’ motion for judgment notwithstanding the verdict, should be affirmed. The cause should be remanded for a new trial of this count on the issue of punitive damages only, under the appropriate instruction.
. The evidence on the assault count indicates that Burnett’s feet were kicked from under him by Griffith, his face was smashed against the back of his car, he was manacled with his hands behind his back, and Griffith physically abused him by inserting a long flashlight between his arms and his back and painfully twisting and prying his arms upwards. The evidence further indicates that Burnett did not resist or use strong language until this pattern of abuse ensued. This evidence of malice and want of probable cause was bolstered by Griffith’s mean conduct at the police station in which he seems to have spitefully raised the bond requirements on two occasions when Burnett's father tendered bond.