BLAND, P. J.
1. Defendant requested instructions in the nature of a demurrer to the evidence, which were by the court refused. This ruling is assigned as error.
On a demurrer to the evidence that construction and weight must be given to the evidence which is most favorable to the plaintiff; and if in its entire scope it [15]*15tends to prove the facts necessary to make out the plaintiff ’s case, the canse should be submitted to the jury. Bank v. Simpson, 152 Mo. 638; Young v. Webb City, 150 Mo. 333; Baird v. Railroad, 146 Mo. 265; Keown v. Railway, 141 Mo. 86; Roe v. Annan, 80 Mo. App. (K. C.) 198; Kattlemann v. Fire Ass’n, 79 Mo. App. (K. C.) 447.
Proof, or evidence tending to prove, the following facts- are essential to authorize the submission of a cause for malicious prosecution to a jury:
First. The institution or prosecution by the defendant of the proceedings complained of.
Second. That the proceedings have finally terminated in favor of the plaintiff.
Third. Want of probable cause on the part of defendant to believe plaintiff guilty of the offense charged.
Fourth. Malice on the part of defendant in instituting or continuing the prosecution.
The conductor was expressly authorized by the defendant to call in a policeman in case of trouble on his ear by the rule of defendant read in evidence. He was, therefore, acting within the scope of his authority when he caused the arrest of plaintiff and preferred the charge of disturbing the peace against him. His acts, therefore, in proceeding against plaintiff, were the acts of the defendant.
The institution and prosecution of proceedings against plaintiff before the police justice, and that he was discharged, are undisputed facts. That plaintiff had not violated the city ordinance, with the infraction of which he was charged, is clearly shown by the evidence of the conductor who first preferred the charge, and that there was no probable cause to believe him guilty is shown by the evidence of the same witness. There is, therefore, undubitable evidence of the existence of the first, second and third elements necessary [16]*16to make out a case of malicious "prosecution. Is there any evidence of the remaining essential ingredient, to-wit, malice?
The law makes no inference of the existence or nonexistence of malice in this character of a suit, only in exceptional cases, but leaves it to the jury to find malice from all the facts and circumstances in evidence under proper instructions; and where there is any evidence that the prosecution was malicious, the plaintiff is entitled to have the issues submitted to the jury.
After the arrest on the advice of the captain of police, the plaintiff was taken by the officer in company with the conductor to Minary, who was a boss over the conductor. The rejected nickel was shown him and all the facts preceding the arrest and the cause of the arrest were related to him truthfully by the conductor. Minary then had a telephonic communication with some one and turned to the conductor and police officer and ordered a charge of disturbing the peace to be made against the plaintiff. We think this evidence tends to prove express malice (Stubbs v. Mulholland et al., 168 Mo. 47), but if it is not sufficient to prove express malice, legal malice may be inferred from the fact that the prosecution was intentional, wrongful and without justification or excuse. Buckley v. Knapp, 48 Mo. loc. cit. 160; McGarry v. Railroad, 36 Mo. App. (St. L.) loc. cit. 346; State v. Grassle, 74 Mo. App. (St. L.) 313. And we conclude that the court did not err in refusing to take the ease from the jury.
The instructions given for the plaintiff correctly declared the law of the case and are approved.
The defendant asked the following instruction, which the court refused.
“If the jury believe from the evidence that the coin tendered by plaintiff in payment of his fare was so worn as to lead the conductor, in the exercise of ordinary care and judgment, to believe that the same “was not a coin of its full face value, and that said conductor, in good [17]*17faith, for that reason; declined to accept said coin in payment of plaintiff’s fare, then said conductor had a right to decline said coin and it was the plaintiff’s duty to tender a coin, or other money, of apparent full face value or to leave defendant’s car upon being requested so to do by said conductor; and even if the jury should find from the evidence that the conductor was mistaken and the coin tendered by plaintiff was a good and sufficient coin, and of its full face value, this did not authorize the plaintiff to attempt to remain upon the car without the payment of his fare in other money, or to become boisterous and disorderly upon the car; and if you find from the evidence that the plaintiff .refused to pay his fare in any other money than said worn coin, or to leave said car, then said conductor had a lawful right to eject him from the c.ar, using for that purpose only such force as was reasonably necessary to effectthatend; and if you further believe from the evidence that while said conductor was attempting to eject said plaintiff, said plaintiff resisted and thereby became disorderly and disturbed the peace of the other passengers on said car, then'said conductor had reasonable cause to have him arrested and said plaintiff can not recover from defendant for either the arrest or the prosecution.”
It is not the law that where a passenger on a street car tenders the exact amount of his fare in a legal tender coin that the conductor has a right to refuse to accept the same because he honestly believes it not to be a good coin and demand payment in other coin, and if the passenger refuses to pay it in other money, then to eject him from the car. On the contrary, the passenger in such circumstances has a right to remain on the ear, and if he -is forcibly ejected, has his recourse on the company for damages, and we think the instruction was properly refused.
Defendant asked other instructions which were refused that went to the measure of daihages.
[18]*18In an action for malicious prosecution, compensation may be recovered for every injury caused by tbe arrest, imprisonment and prosecution, including loss of time, attorney’s fees paid out to procure plaintiff’s acquittal or release, and for injuries to the feelings and reputation. 2 Sedgwick on Damages (8 Ed.), secs. 458, 459.
Tbe refused instructions excluded most of these elements that enter into tbe estimate o'f damages in this character of action and were properly refused.
Tbe sixth refused instruction asked by defendant is as follows:
“6. Tbe court instructs tbe jury that even should they believe from tbe evidence that plaintiff was acquitted in tbe police court on tbe charge of disturbing tbe peace, still such acquittal does not raise tbe presumption in this case that said arrest and prosecution were malicious and without probable; cause on tbe part of said defendant, and said plaintiff must in this case prove by tbe preponderance or greater weight of tbe evidence, that such charges are true. ’ ’
Tbe instruction is correct as a legal proposition. Day v. Graham, 97 Mo. loc. cit. 398; Williams v. Vanmeter, 8 Mo. 339.
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BLAND, P. J.
1. Defendant requested instructions in the nature of a demurrer to the evidence, which were by the court refused. This ruling is assigned as error.
On a demurrer to the evidence that construction and weight must be given to the evidence which is most favorable to the plaintiff; and if in its entire scope it [15]*15tends to prove the facts necessary to make out the plaintiff ’s case, the canse should be submitted to the jury. Bank v. Simpson, 152 Mo. 638; Young v. Webb City, 150 Mo. 333; Baird v. Railroad, 146 Mo. 265; Keown v. Railway, 141 Mo. 86; Roe v. Annan, 80 Mo. App. (K. C.) 198; Kattlemann v. Fire Ass’n, 79 Mo. App. (K. C.) 447.
Proof, or evidence tending to prove, the following facts- are essential to authorize the submission of a cause for malicious prosecution to a jury:
First. The institution or prosecution by the defendant of the proceedings complained of.
Second. That the proceedings have finally terminated in favor of the plaintiff.
Third. Want of probable cause on the part of defendant to believe plaintiff guilty of the offense charged.
Fourth. Malice on the part of defendant in instituting or continuing the prosecution.
The conductor was expressly authorized by the defendant to call in a policeman in case of trouble on his ear by the rule of defendant read in evidence. He was, therefore, acting within the scope of his authority when he caused the arrest of plaintiff and preferred the charge of disturbing the peace against him. His acts, therefore, in proceeding against plaintiff, were the acts of the defendant.
The institution and prosecution of proceedings against plaintiff before the police justice, and that he was discharged, are undisputed facts. That plaintiff had not violated the city ordinance, with the infraction of which he was charged, is clearly shown by the evidence of the conductor who first preferred the charge, and that there was no probable cause to believe him guilty is shown by the evidence of the same witness. There is, therefore, undubitable evidence of the existence of the first, second and third elements necessary [16]*16to make out a case of malicious "prosecution. Is there any evidence of the remaining essential ingredient, to-wit, malice?
The law makes no inference of the existence or nonexistence of malice in this character of a suit, only in exceptional cases, but leaves it to the jury to find malice from all the facts and circumstances in evidence under proper instructions; and where there is any evidence that the prosecution was malicious, the plaintiff is entitled to have the issues submitted to the jury.
After the arrest on the advice of the captain of police, the plaintiff was taken by the officer in company with the conductor to Minary, who was a boss over the conductor. The rejected nickel was shown him and all the facts preceding the arrest and the cause of the arrest were related to him truthfully by the conductor. Minary then had a telephonic communication with some one and turned to the conductor and police officer and ordered a charge of disturbing the peace to be made against the plaintiff. We think this evidence tends to prove express malice (Stubbs v. Mulholland et al., 168 Mo. 47), but if it is not sufficient to prove express malice, legal malice may be inferred from the fact that the prosecution was intentional, wrongful and without justification or excuse. Buckley v. Knapp, 48 Mo. loc. cit. 160; McGarry v. Railroad, 36 Mo. App. (St. L.) loc. cit. 346; State v. Grassle, 74 Mo. App. (St. L.) 313. And we conclude that the court did not err in refusing to take the ease from the jury.
The instructions given for the plaintiff correctly declared the law of the case and are approved.
The defendant asked the following instruction, which the court refused.
“If the jury believe from the evidence that the coin tendered by plaintiff in payment of his fare was so worn as to lead the conductor, in the exercise of ordinary care and judgment, to believe that the same “was not a coin of its full face value, and that said conductor, in good [17]*17faith, for that reason; declined to accept said coin in payment of plaintiff’s fare, then said conductor had a right to decline said coin and it was the plaintiff’s duty to tender a coin, or other money, of apparent full face value or to leave defendant’s car upon being requested so to do by said conductor; and even if the jury should find from the evidence that the conductor was mistaken and the coin tendered by plaintiff was a good and sufficient coin, and of its full face value, this did not authorize the plaintiff to attempt to remain upon the car without the payment of his fare in other money, or to become boisterous and disorderly upon the car; and if you find from the evidence that the plaintiff .refused to pay his fare in any other money than said worn coin, or to leave said car, then said conductor had a lawful right to eject him from the c.ar, using for that purpose only such force as was reasonably necessary to effectthatend; and if you further believe from the evidence that while said conductor was attempting to eject said plaintiff, said plaintiff resisted and thereby became disorderly and disturbed the peace of the other passengers on said car, then'said conductor had reasonable cause to have him arrested and said plaintiff can not recover from defendant for either the arrest or the prosecution.”
It is not the law that where a passenger on a street car tenders the exact amount of his fare in a legal tender coin that the conductor has a right to refuse to accept the same because he honestly believes it not to be a good coin and demand payment in other coin, and if the passenger refuses to pay it in other money, then to eject him from the car. On the contrary, the passenger in such circumstances has a right to remain on the ear, and if he -is forcibly ejected, has his recourse on the company for damages, and we think the instruction was properly refused.
Defendant asked other instructions which were refused that went to the measure of daihages.
[18]*18In an action for malicious prosecution, compensation may be recovered for every injury caused by tbe arrest, imprisonment and prosecution, including loss of time, attorney’s fees paid out to procure plaintiff’s acquittal or release, and for injuries to the feelings and reputation. 2 Sedgwick on Damages (8 Ed.), secs. 458, 459.
Tbe refused instructions excluded most of these elements that enter into tbe estimate o'f damages in this character of action and were properly refused.
Tbe sixth refused instruction asked by defendant is as follows:
“6. Tbe court instructs tbe jury that even should they believe from tbe evidence that plaintiff was acquitted in tbe police court on tbe charge of disturbing tbe peace, still such acquittal does not raise tbe presumption in this case that said arrest and prosecution were malicious and without probable; cause on tbe part of said defendant, and said plaintiff must in this case prove by tbe preponderance or greater weight of tbe evidence, that such charges are true. ’ ’
Tbe instruction is correct as a legal proposition. Day v. Graham, 97 Mo. loc. cit. 398; Williams v. Vanmeter, 8 Mo. 339. Its refusal in this case, however, was not prejudicial error for tbe reason that tbe evidence offered by tbe defendant as well as that offered by tbe plaintiff shows not only that tbe plaintiff was not guilty of a disturbance of tbe peace, but that there was no reasonable ground upon which a reasonable and cautious person could for an instant believe him to be guilty.
3. It is contended that tbe ease is not one in which exemplary damages should be ahowed. Exemplary damages are not given in every action for tort. They are allowed as a punishment for tbe wrong done, and are allowed only when tbe tortious act was willfully or wantonly done. Tbe motive accompanying tbe act must be wrong. 1 Sedgwick on Damages (8 Ed.), sec. 363. They are not, therefore, allowable in actions for ina[19]*19licious prosecution unless there is proof of express malice, and the court substantially so instructed the jury, and we think there was substantial evidence upon which to hypothecate the instruction.
4. It was agreed by both parties that the genuineness of the nickel in question was for the court to determine as a matter of law. David P. Dyer, Jr., a teller in the United States sub-treasury in St. Louis, was permitted to testify as to the appearance, etc., of the nickel. Defendant objected to his testimony on the ground that the evidence was irrelevant and immaterial. The overruling of this objection is assigned as error. The objection is too general to require consideration and we think the defendant waived the objection by introducing the same character of evidence in its defense.
5. Finally, defendant insists that the damages are excessive. The only expense the plaintiff was put to in defending himself against the criminal charge was ten dollars attorney’s fee and three dollars and fifty cents for bond. His loss of time was less than one day, and there was no evidence as to the value of his time; but as he was a business man, it is to be presumed that Ms time was worth something. There is no direct evidence that he suffered any pain of mind, nor any that his reputation was damaged. It appears from the evidence that rather than leave the car at the request of the conductor, or to be forcibly put off by him, he chose to be arrested by an officer. The arrest, therefore, had no terror for him, nor could he have felt any great humiliation on account of it. The actual damages on account of the arrest and prosecution were slight, and it seems to us that the damages assessed both as compensatory and exemplary are vindictive and in excess of what is reasonable and right. One thousand dollars we think will fully compensate the plaintiff for the actual damage and sufficiently punish the defendant for the wrong committed.
[20]*20The judgment is reversed and the cause remanded for retrial, unless within ten dgys from the date of the filing of this opinion, plaintiff files in this court his remittitur of one thousand dollars of the judgment. If such remittitur be filed' within the time allowed, the judgment will stand affirmed.
All concur.