¶1 On Rehearing.
¶2 Opinion by
¶3 The court, in the fifteenth paragraph, instructed the jury as follows:
“You are instructed that the defendant for a fifth defense claims that the institution of this suit on the part of the plaintiff was malicious and without probable cause. Upon this defense you are instructed that the *142 defendant has failed, and such defense should not be considered by you.”
¶4 It may be here incidentally observed that the fifth defense is not a statement of any elemental fact or facts constituting a defense to plaintiff’s action; but, in this so called defense, it is alleged that this action is malicious and without reasonable provocation on the part of plaintiff, together with allegations attributing such malice to a matter, of which there .is no evidence, foreign to the facts alleged and issues tendered in plaintiff’s petition, and imputing to the plaintiff a purpose in this action, of which there is no evidence, ulterior to that disclosed by his petition. The allegation that- the action is without reasonable provocation is possibly intended to be predicated upon, defendant’s denial, in the first and second grounds of defense stated in his answer, that he made the statements imputed to him in the petition as defamatory, or his allegation in his third ground of defense that said statement is “true in substance and in fact.” But, without deciding that it is necessary for a defendant to allege either malice or absence of reasonable provocation, to be entitled to a finding by the jury that the action was malicious or without reasonable provocation, if the verdict upon the main issue is in his favor, as a predicate for a judgment for costs, including an attorney’s fee of $100 in his favor, under section 2161, Stat. 1890 (section 4961, Eev. Laws' 1910), and to have this issue as to such malice and as to such absence of reasonable provocation submitted to the jury, at least upon request, when the evidence justifies it, we think the answer, eliminating said foreign matter therefrom as surplusage, or as merely evidence of malice, sufficiently alleges both malice and absence of reasonable provocation, certainly the latter, to *143 make this an issue in the case. when the case was submitted to the jury. And this issue should have been submitted, although the refusal of the court to submit it is harmless, in view of the verdict upon the main issue.. However, it was one thing to refuse to submit this requested issue to the jury, as the absence of such submission could not have affected the finding of the jury upon the submitted question as to the truth of the alleged defamatory matter, and quite another and different thing to instruct the jury that there was no evidence of either malice or of the absence of reasonable provocation on the part of the plaintiff, as this instruction, incidentally and in logical effect, negatived the truth of the alleged defamatory matter.
¶5 The answer alleges, and the defendant adduced evidence tending to prove, that the matter charged as defamatory in plaintiff’s petition is true; that is, that the plaintiff had committed the crime of perjury in the Ehler case; and the evidence so adduced necessarily tends to prove that this action is malicious ans| without reasonable provocation or probable cause. If the plaintiff gave false testimony, and was thus guilty of perjury, in the Ehler case, the inference of malice and of absence of reasonable provocation on his part in the instant case would have to be regarded as irresistibly strong and logically necessary. And, as the converse of this proposition, if, as the court instructed, there was no evidence of malice or of absence of reasonable provocation, there? must have been none of the truth of the alleged defamatory matter — the two propositions seem inseparable. They should stand or fall together in a case like this. True enough, as urged by plaintiff, the submission to the jury of the question of the truth of such defamatory- *144 matter is inconsistent with and logically negatives the view we take of the instruction under consideration; but it does not cure the error, nor go farther towards doing so than to tend to confuse the minds of the jurors. It was at least, .an instruction upon the weight of the evidence upon an issue, erroneously withdrawn thereby from the jury, inseparably connected with the main issue submitted, and decided in favor of the plaintiff, which in logical effect affected the substantial rights of the defendant and probably resulted in a miscarriage of justice.
¶6 At the time of the original opinion, the harmful effect of this error had not been clearly pointed out to this court, nor discovered, although this instruction was assigned as error and mentioned in the argument in the defendant’s brief in connection with the refusal of the court to give the instruction we held to have been harmless error in the original opinion.
¶7 For the reasons stated, the judgment of the trial court should be reversed, and the case remanded, with instructions to grant defendant a new trial.
¶8 By the Court: It is so ordered.