I dissent from the order denying a rehearing and adhere to the conclusions expressed in my dissenting opinion,supra. Respondent in his petition for rehearing has cited two recent decisions not theretofore cited herein, each of which gives full support to those conclusions. The case ofDirector-General of Railroads v. Kastenbaum, decided November 12, 1923, by the supreme court of the United States (263 U.S. 25 [44 Sup. Ct. Rep. 52]), was an action for false imprisonment. In the opinion by Mr. Chief Justice Taft that court said:
"The want of probable cause, certainly in the absence of proof of guilt or conviction of the plaintiff, is measured by the state of the defendant's knowledge, not by his intent. It means the absence of probable cause known to the defendant when he instituted the suit. But the standard applied to defendant'sconsciousness is external to it. The question is not whether hethought the facts to constitute probable *Page 620 cause, but whether the court thinks they did." (Italics added.)
The case of Barton v. Woodward, 32 Idaho, 375 [5 A. L. R. 1093, 182 P. 916], is so strikingly similar to the case at bar both in its facts and in the questions of law presented upon the appeal as to be substantially identical therewith. It was an action for malicious prosecution in the institution of lunacy proceedings against the plaintiff by the defendants. In that case, as in this, there was evidence of malice, evidence that the prosecution was instituted in bad faith, and evidence that the defendants did not actually believe that the charge was true. Thus the question there presented was identical with the one upon which this case must turn, namely, whether or not evidence that the defendant acted in bad faith, or from an improper motive, or without an actual belief in the truth of the charge, can be regarded as evidence tending to prove a want of probable cause. Upon this question that court said:
"It is true there is evidence which would justify a finding of malice, but it is too well established to admit of argument that want of probable cause cannot be inferred from malice. It has been said in some cases that the fact a criminal case is prosecuted from some private or personal motive, other than a public motive, is of itself evidence of want of probable cause. This is not a logical statement. Probable cause depends uponwhat the prosecuting witness knew, or ought, as a reasonablyprudent man, to have, known, when he instituted the proceeding. If he had no sufficient information to justify a reasonably prudent man in believing the defendant was guilty, then the inference may be drawn he was acting from improper motive. However, improper motive is proof of malice, but not, of itself, proof of want of probable cause. . . . We conclude the evidence is insufficient to establish want of probable cause." (Italics added.)
*Page 621Waste, J., concurred.