¶1 (dissenting). I cannot agree with Mr. Justice Clark that the alleged fair disclosure of material facts by the complaining witness to the prosecuting attorney constituted probable cause as a matter of law.
¶2 The plaintiff was acquitted in the criminal prosecution because the undisputed evidence showed that she did not sign the contract which was the basis of the action. She signed a contract in blank and the list of goods was afterwards filled in by the defendant. Had this fact been known to the prosecuting attorney he would not have directed the warrant to issue. Mr. Maynard, who made the complaint, was not in the defendant’s employ when the contract was executed. Mr. Reutter, who was then credit man for defendant, witnessed its execution. However, Mr. Maynard knew that the custom in contract merchandise accounts was to have the contract signed in blank and the list of goods filled in later. Mr. Reutter explained the reason for this custom. Knowing the custom and that Reutter had *7 witnessed the contract, Maynard easily conld have ascertained if it had been signed in blank. This information, readily ascertainable, would have negatived the plaintiff’s guilt. Fairness and good faith required that he obtain this information from Mr. Reutter and disclose it to the prosecuting attorney. At least it was for the jury to say whether Mr. Maynard reasonably inquired into the facts and circumstances before making his charges to the prosecuting attorney. The circuit judge was right in so holding.
¶3 The defendant claims that the prosecuting attorney made an independent investigation before ordering the warrant to issue. This is disputed by the plaintiff. Mr. Maynard testified that on his first visit to the prosecuting attorney he informed him that Mr. Reutter knew all about the execution of the contract; that the prosecuting attorney requested him to bring Reutter to the office; that he did so, and after talking with Reutter the warrant was issued. Reutter did not testify to being at the prosecutor’s office, and the testimony of the prosecuting attorney indicates that the only time he saw Reutter and talked to him was after the plaintiff’s arrest when he was brought to the office to make an affidavit for her extradition. The facts being disputed, it was for the jury to determine the claim of an independent investigation.
¶4 We think the court did not err in leaving the question of probable cause to the jury.
¶5 During the trial the court ruled that the plaintiff’s acquittal on the criminal charge was conclusive evidence that she was not guilty, and struck out testimony of Mr. Maynard that he believed an offense had been committed.
¶6 As no error is assigned on this ruling, the question is not here for consideration. However, in fairness *8 to the trial court, it should be said that he corrected the error in his charge and that he liberally permitted all the facts to be shown on which the prosecuting witness based his belief that a crime had been committed.
¶7 Other questions argued by defendant and not discussed in this opinion have been considered and found to be without merit.
¶8 The jury rendered a verdict in favor of the plaintiff for $36,000. We have examined the testimony in regard to her damages and think the verdict is excessive. As we find no other reversible error, if the plaintiff will remit $18,000 from the judgment by remittitur, filed in ten days from this date, the judgment should stand affirmed; otherwise a new trial should be granted.