This case grew out of the same facts as Payne v. Teague (Tex. Civ. App.) 242 S. W. 290, which was a suit by the wife of this appellee for damages suffered by her because of a wrongful assault committed upon her by one David McReyn-olds, as agent of the Director General. Mc-Reynolds not only assaulted Mrs. Teague, but also her husband, Henry Teague, the appellee herein. Henry Teague based his recovery on three grounds: (1) For personal injuries resulting from an assault made upon him by appellant’s special agent, Mc-Reynolds; (2) for exemplary damages based upon the contention that the assault was maliciously made and had been ratified by an officer of the Director General authorized so to do; (á) for compensatory damages resulting from a malicious prosecution alleged to have been caused, brought about, and instigated by appellant’s agents, acting within the scope of their employment. These different elements of recovery were submitted to the jury on'special issues, and on their answers judgment was entered for appellee. It appears that David McReynolds secured information that Henry Teague, an engineer in the service of the Director General, was unlawfully transporting intoxicating liquor from Louisiana to Houston, Tex., and on a certain day would bring into Houston from Louisiana some whisky which he would have with him in a small hand grip. When Teague left his engine, he put the grip into his car, which his wife had driven up to carry him home. McReynolds attempted to get possession of the grip at that time, but not being able to do so, assaulted Mr. and Mrs. Teague, and after riding to their home with them on their car renewed the assault. At the home of appellee, McReynolds got possession of two quarts of whisky, which he contended that he took out of appellee’s grip; but the jury found that he took it out of a box in appellee’s garage, in which Mrs. Teague had stored some whisky they had owned for some time. McReynolds carried the two quarts of whisky which the jury found he took from the box in appellee’s garage to the office occupied by appellant’s special agency department, which was immediately adjoining to" his superintendent’s office. McReynolds, or his superior officer, Johnson, showed this whisky to the superintendent, and explained their version of the circumstances under which it was taken. Johnson then called one McPhail, an agent of the Department of Justice, holding a commission under the Attorney General of the United States, and had him come to appellant’s general office where the whisky was. McReynolds then, under the direction of his superior officer, Johnson, and in company with McPhail, personally carried the two bottles of whisky to the office of the United Sjtates district attorney, and gave to him his version of how he came into possession of the whisky. Upon the information thus furnished by McReynolds, the district attorney instituted a prosecution for unlawfully transporting intoxicating liquor, against ap-pellee, who was arrested, tried, and acquitted.
We here make reference to the statement made by us in Payne v. Teague, supra, of the facts of the assault and of the agency of McReynolds, and as the facts on this appeal are identical with the facts in that case, without a further discussion of the facts, we sustain the findings of the jury t<y the effect that McReynolds, as agent of the. appellant, was acting within the scope of his authority, and was representing appellant at the time he committed the assault. Then, on the following proposition, advanced by appellant, the court did not err in refusing to instruct a verdict in his favor:
*960“If McReynolds was acting within the scope of his authority, or representing the Director General at the time the assaults were made, then the Director General would be liable for such assaults.”
On motion to enter judgment, on the proposition announced in Missouri Pacific Railway v. Ault, 256 U. S. 554, 41 Sup. Ct. 593, 65 L. Ed. 1087, appellee entered a re-mittitur of the $125 awarded him by the jury on his count for exemplary damages. As this was a separate and distinct count submitted on special issues separately and distinctly from the other counts, no reversible error was committed by the court in submitting it. It does not appear in what way the. submission of this issue could have prejudiced appellant’s rights in the consideration by the jury of the other issues.
The issue of malicious prosecution was submitted to the jury by the following questions, answered as indicated:
“Special issue No. 15: Did McReynolds and Johnson, or either of them, cause or bring about, or procure, the arrest and indictment pf plaintiff for illegally transporting said intoxicating liquor from the state of Louisiana to the state of Texas? You will answer this issue ‘yes’ or ‘no,’ according as you may find the facts to he.” (To this question the jury answered: “Yes.”)
“Special issue No. 16: Were McReynolds and Johnson, or either of them, in so doing, acting within the scope of his or their authority as agents and employees of such Director General of Railways? You will answer ‘yes’ or ‘no,’ according as you may find the facts to be.” (To this question the jury answered: “Yes.”)
“If you have answered the foregoing issue ‘yes,’ and in that event only, then you will answer: Special issue No. 17: Were said. Johnson and McReynolds, or either of them, in causing, or procuring, or bringing about said arrest and indictment of the plaintiff, actuated by malice, as the term ‘malice’ has been hereinbefore defined to you? You will answer ‘yes’ or ‘no,’ as you may find the facts to be.” (To this-question the jury answered: “Yes.”)
“If you have answered the foregoing special issue ‘yes,’ and in that event only, then you will answer: Special issue No. 18: What sum of money, if paid now, will reasonably compensate plaintiff for the injuries, if any, he has sustained because of such arrest and prosecution, taking into consideration the following elements and no others:
“(a) The loss of time, if any, he has sustained from the 15th day of May, A. D. 1919, to this date, which you may find has been the direct and proximate result of said arrest and prosecution, and from no other cause.
“(b) -Such loss of time, if any, as you may find he will probably and reasonably sustain in the future, if any, as a direct result of said arrest and prosecution.
“(c) Such iújuries, if any, to his feeling, name, and reputation that he has sustained, if any, as a direct and proximate result of said arrest and prosecution.
“(d) Such sums of money, if any, as you may find plaintiff has been compelled to expend to defend against said indictment directly resulting from such arrest and prosecution.
“You will answer this issue by stating the amount, if any, you find.”
(To this question the jury answered: “$8,-075.”)
Without a further statement from the evidence, we think it clearly appears that the issues submitted under questions 15, 16, and 17, as above given, were duly raised by the evidence. Issue No. 15 has its support under the facts of this case in appellee’s following counter proposition:
“That one may be held liable as the instigator of a prosecution, it is not necessary that one should have preferred the charge in person, but one may be held as the instigator if one exhibited, or caused to be exhibited, to the officer of the law charged with the duty of bringing criminals to justice, evidence which one knows to be manufactured, and as a proximate result of the exhibition of such manufactured evidence the prosecution is started.” M., K. & T. v. Groseclose (Tex. Civ. App.) 134 S. W. 740; Railway Co. v. Quigley, 21 How. 202, 16 L. Ed. 76; Penn Co. v. Weddle, 100 Ind. 140.
The rule is thus announced in the note to 26 Am. St. Rep. 132:
“Perhaps a majority of the great transportation companies have special agents or detectives whose duties include the apprehension of all persons who have committed crimes by which the property of the corporation has been embezzled, stolen, or destroyed, or its interests otherwise prejudiced; and while it may be said that the delegation of authority to do these things does not imply that an agent thus constituted shall in any event act maliciously and without probable cause, to this the unanswerable reply has been made by the courts, that one of the consequences liable to attend the delegation of the authority is that of the malicious prosecution of persons who are not offenders, and that when this consequence does result, the corporation must be held answerable. American Exp. Co. v. Patterson, 73 Ind. 430; Evansville, etc., R. R. Co. v. McKee, 99 Ind. 519, 50 Am. Rep. 103; Goff v. Great Northern Railway Company, 3 El. & E. 672, 30 L. J. Q. B. 138; Pennsylvania Co. v. Weddle, 100 Ind. 138.”
If McReynolds took the whisky from ap-pellee’s possession and fraudulently represented that he took it from appellee’s grip, and then either voluntarily or under the direction of his superior officers gave false evidence to the officers charged by the law with the duty of prosecuting criminals, and on this false evidence prosecution was instituted, then issue No. 15 was duly raised. We think the facjts sustain the jury’s finding.
The jury’s answer to issue No. 16 has support in the evidence. In making the assault and in taking possession of the whis-ky, the jury found, and we have sustained its finding, that McReynolds was acting within the scope of his authority as an *961agent of appellant, and was representing him. He then took the whisky to appellant’s general office, and made a report to appellant’s general agent. Those in authority over him then called into their consultation the agent of the Department of Justice, and acting under orders of his superiors McReyn-olds went before the federal district attorney and voluntarily gave evidence against appellee which, on the verdict of the jury, was false. We cannot escape the conclusion that the issue was raised that the prosecution against appellee was caused and brought about by appellant’s agents on evidence which they knew was manufactured and false.
Issue No. 17 submitted the question of malice. Malice is a necessary element of malicious prosecution. 18 R. C. L. p. 28, says:
“The authorities are unanimous in holding that it is essential to a recovery in the action of malicious prosecution that the action or prosecution complained of must have been maliciously instituted” — which is supported by Dempsey v. State, 27 Tex. App. 269, 11 S. W. 372, 11 Am. St. Rep. 193, and Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85.
If appellant’s agents willfully instituted the prosecution against appellee on false testimony, then their conduct raised the issue of malice. That issue was raised by the evidence, which is sufficient to sustain the jury’s finding.
To make a prosecution malicious, there must also be a want of probable cause. Again quoting R. C. L. vol. 18, p. 33:
“While, as the name implies, malice is the root of the action of malicious prosecution, malice alone, even when extreme, is not enough, but want of probable cause for the institution or original proceedings must also be shown.”
See, also, Smith v. Pierson (Tex. Civ. App.) 151 S. W. 1113.
Appellant strenuously insists that the prosecution was instituted on probable cause. If MeReynolds took the two quarts of whisky from appellee’s private stock and then falsely swore that he took them from the grip which appellee had with him on his engine, he did not act on probable cause in instituting the prosecution. He knew that appellee was not guilty of the charge lodged against him. Though MeReynolds may have had probable cause to believe that appellee had whisky in the grip at the time he got off his engine and at the time he put the grip in his car and at the time of the commission of the assault upon appellee and his wife, and though he may have had probable cause to continue in that belief as he rode with appellee and his wife to their home and during a part of the time he was at their home, yet he afterwards acquired information that appellee was not guilty, and with this information fraudulently took from appellee’s possession two quarts of whisky and falsely represented that he took it from appellee’s grip. The theory of the case testified to by appellee and believed by the jury excluded altogether the issue of probable cause. As we understand the verdict of the jury and the evidence offered in this case, all the elements of a malicious prosecution have been found in appellee’s favor.
This brings us to a consideration of appellant’s twentieth proposition, which is as follows:
“This being a suit against the government, and plaintiff’s cause of action, if any, having accrued while the railroad company was being operated and controlled by the government, no suit is maintainable against the government for malicious prosecution.”
The following propositions determine that question against appellant:
(1) An action for malicious prosecution is an action at law and was recognized as such at common law. Blackstone’s Commentaries, Book III, 126; 26 Cyc. 68.
(2) The damages resulting therefrom are purely compensatory and arise and accrue to the injured party because of injury inflicted, as contradistinguished from a penalty or a punishment to be imposed upon the party causing the injury. 26 Cyc. 61. The following section of the Federal Control Act:
“Carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising'under state or federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government,”
—which is section 3115%j, U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, was construed by the Supreme Court of the United States in Railway v. Ault, supra, as giving a cause of action for all compensatory damages. The court said:
“Wherever the law permitted compensatory damages, they may be collected against the carrier while under federal control.”
The court did not err in submitting to the jury the different elements of recovery as stated in question 18. This is made clear by 26 Cyc. 61-63:
“The party injured is entitled to adequate compensation covering all the elements of the particular injury. Such elements of damages include loss of time, peril to life and liberty, injury to fame, reputation, character, and health, mental suffering, general impairment of social and mercantile standing, actual loss and *962injury to property, interest, and 'credit; decrease in earning capacity; and all losses sustained in business. Such 'damages must be the direct, natural, and proximate result of the former suit.
“Expenses incurred or paid about the original proceeding by plaintiff and attorney’s fees which have been incurred by him, if reasonable and necessary, so far as they are shown to have been an actual and proximate consequence of the act complained of, are items of damage which may be awarded plaintiff to the extent of their proved value.”
Appellant complains that the court did not limit certain impeaching evidence offered by appellee. His proposition is that such evidence is “not admissible and cannot be considered by the jury in determining other issues submitted for their consideration.” This is a sound proposition, but no error is shown, because appellant did not except to the charge on the ground, nor did he ask a special charge limiting the evidence to the purposes for which it was offered.
Special issue No. 1 was submitted in the following form:
“Was David MeReynolds, on the occasion of the injuries complained of, acting for and on behalf of the Director General of the Texas & New Orleans Railroad Company and the Houston & Texas Central Railroad Company, or either of them?”
Appellant excepted to this issue on the ground “that it was a charge upon the weight of the evidence, and did not submit for the determination of the jury the simple question for their determination as to who McReynolds was acting for.” Mr. Justice Neill, in O’Farrell v. O’Farrell, 56 Tex. Civ. App. 51, 119 S. W. 899, overruling a similar proposition, said:
“We know of no principle of law, nor are we cited to any, which applies the rule inhibiting a leading question to a witness to the form of a question submitting a special issue to a jury, nor can we perceive any reason why such form of presenting an issue should be regarded as erroneous. It is for the trial court, after determining what issues of fact should be presented, to determine the form of the question to be used in submitting them to the jury; and, if the form of the question adopted is free from any indication on the part of the court as to how the issue should be determined, the action of the court as to such matter cannot be reviewed on appeal. We therefore overrule the twenty-fourth assignment of error.”
We quote as follows from appellant’s argument:
“In the recent case of Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, the Supreme Court has held that a defendant is entitled to have all affirmative issues properly submitted.
“Special issues Nos. 1 and 2, as well as special issues Nos. 3, 4, and 5, certainly raise the issue as to whether or not MeReynolds, in trying to take possession of the grip was acting -in good faith or was actuated by malice. Defendant also asked that the court submit for the determination of the jury the issue of whether or not McPhail, as a representative of the Department of Justice, requested McReynolds or Houghton to assist him in the apprehension of Teague, and the issue of whether MeReynolds and Houghton went to the depot at the request of McPhail or with the understanding with McPhail for the purpose of assisting McPhail only. If the jury had made an affirmative answer to these issues, certainly it would have negatived any malice on the part of MeReynolds.”
The final question on the issue of malicious prosecution was, not whether McReyn-olds was acting on probable cause when he tried to get possession of appellee’s grip, nor whether McPhail requested him and Johnson to assist in apprehending appellee, nor whether they went to the depot for the purpose of assisting McPhail in apprehending appellee, but this issue was determined by all the facts in evidence, and was properly submitted under questions 15, 16, and 17, supra. The requested issues embodied only evidentiary facts, and for that reason were properly refused. For the same reason the trial court refused other special issues requested by appellant, which are made the basis of assignments of error.
The court did not err in permitting the witnesses to testify as to the facts of the assault committed upon Mrs, Teague. The assault upon Mrs. Teague and the assault upon Henry Teague were part of the same transaction and were so intimately connected, the one with the other, that a witness could not separate the facts of the two assaults.
In his motion for new trial, appellant assigned 59 errors. What we have said disposes directly of most of appellant’s assignments. The others do not present any novel question, and under the authority of Judge Key’s opinion in Railway Co. v. Gooch (Tex. Civ. App.) 247 S. W. 917, we refrain from discussing them.
We believe the judgment of the trial court should be affirmed, and it is accordingly so ordered.