682 S.W.2d 803 (1984)

Robert A. SANDERS, Respondent,
v.
DANIEL INTERNATIONAL CORPORATION, Appellant.

No. 65529.

Supreme Court of Missouri, En Banc.

December 18, 1984.

*805 John E. Burruss, Jr., J. Kent Lowry, Jefferson City, for appellant.

Richard G. Callahan, Charles R. Miller, Jefferson City, for respondent.

WELLIVER, Judge.

This case involves a malicious prosecution action brought by respondent, Robert A. Sanders. At trial, the jury returned a verdict in favor of respondent, awarding him $100,000 in actual damages and $250,000 in punitive damages. We ordered the cause transferred after the Southern District affirmed the judgment. We reverse and remand.

The criminal prosecution forming the basis for this malicious prosecution action was a misdemeanor case in which respondent was charged with the attempted theft of tools and gauges valued over fifty dollars. Respondent was one of seven persons charged with that crime. The information was sworn to by the prosecutor following a conversation in his office with agents of appellant, Daniel International Corporation. The prosecutor dismissed the misdemeanor action because he believed that insufficient evidence existed to proceed with the trial. Respondent then filed this action for malicious prosecution.

I

At the time the information was filed, appellant was engaged in the construction of a nuclear power plan in Callaway County, Missouri for Union Electric Company. The construction project required more than 2,700 workers, and the company had crews working day and night shifts. Union Electric owned all the tools used on the job, and pursuant to a contract appellant was responsible for and controlled the purchase, allocation and use of all the tools. The individual workers did not bring their own tools onto the job site. Appellant issued individual tool boxes to each worker, and the workers were allowed to keep their tool boxes in larger "gang boxes" assigned to each crew. The crew foreman kept each gang box locked. Additional tools could be checked out from a "tool room" and were to be returned to the tool room at the end of the day.

Prior to December 1978, tool theft and tool hoarding had been a recurring and expensive problem. Posted on the fence surrounding the job site were signs warning that persons caught removing tools from the project would be subject to prosecution. Pinkerton security furnished personnel to control perimeter access to the job site.

Respondent was a member of Crew 52, a night-shift pipefitting crew consisting of a foreman and eight crew members. On the morning of December 20, 1978, a day-shift pipefitting crew, Crew 5, reported to work and discovered that its gang box had been broken into. The lock on the gang box had been cut with a pair of bolt cutters. A quick investigation revealed that a member of Crew 52, Gus Groves, had checked out bolt cutters from the tool room on the previous night. In the presence of Superintendent Terry Heers, security guards opened the Crew 52 gang boxes with a master key. At the top of one of the gang *806 boxes was a set of welding gauges, the hoses of which had been cut recently. These cuts matched the other ends of the hoses that remained in the Crew 5 gang box. Also present in a Crew 52 gang box was a pair of welding leathers belonging to a member of Crew 5.

Heers directed that an inventory be made of the tools in the Crew 52 gang boxes. The gang boxes and the individual tool boxes that were inside the gang boxes were emptied and all of the tools of a particular kind were put in a pile for inventory purposes. Some of the tools in the gang boxes were in individual tool boxes and some were not.

Next, Heers discussed the situation with Service Manager Gary Warblow and with Assistant Project Manager Wallace Sykora. They decided to go to the sheriff's office to discuss the problem. The sheriff sent Warblow and Heers to the prosecutor's office, where they met with Callaway County Prosecutor Gene Hamilton. Hamilton testified that Warblow and Heers initially asked him about the possibility of search warrants for the houses of seven members of Crew 52, and he told them that search warrants were not possible because (1) the seven people resided outside of Callaway County and the warrant would be limited to that county; and (2) there was no showing that tools had been taken from the plant or that they were actually located in their houses. He said that no probable cause existed to search their houses. After a conversation lasting approximately a half hour, Heers and Warblow, at the suggestion of the prosecuting attorney, signed a blank complaint against respondent. Hamilton then filed an information upon which an arrest warrant was issued. On February 15, 1979, Hamilton dismissed the charges against Sanders.

II

Appellant raises a number of issues on appeal. First, we must address appellant's argument that respondent failed to establish all of the elements of the tort of malicious prosecution, particularly the requisite "malice." This involves examining whether MAI 16.01 (1981) correctly defines malice for a malicious prosecution. MAI 16.01 provides, in part, that malice is "the doing of a wrongful act intentionally without just cause or excuse." Also involved is a determination of whether this same instruction should be used when instructing the jury on punitive damages in a case involving a malicious prosecution.

Actions for malicious prosecution have never been favorites of the law. There is almost universal agreement that sound public policy dictates that the law should encourage the uncovering and prosecution of crime. Any "policy that discourages citizens from reporting crime or aiding in prosecution would be undesirable and detrimental to society in general." Cates v. Eddy, 669 P.2d 912, 917-18 (Wyo.1983). Courts have always recognized that "[m]alicious prosecution is an action which tends to dilute the public policy of encouraging persons having knowledge of possible crimes to cooperate with public officers." Seelig v. Harvard Cooperative Society, 1 Mass.App. 341, 296 N.E.2d 825 (1973). See also Bonzo v. Kroger Grocery & Baking Co., 344 Mo. 127, 125 S.W.2d 75 (1939); Muza v. Cash Bargain Lumber Co., 586 S.W.2d 403, 406 (Mo.App.1979). The nature of this cause of action, therefore, has led courts to require strict proof of each element of the tort. See L. Green, Judge and Jury 338 (1930). See also Higgins v. Knickmeyer-Fleer Realty & Investment Co., 335 Mo. 1010, 74 S.W.2d 805 (1934); Hunter v. Karchmer, 285 S.W.2d 918 (Mo. App.1955); Bellington v. Clevenger, 228 S.W.2d 817 (Mo.App.1950). In a federal circuit court opinion, for example, Justice Washington noted that: "[i]n trials of actions of this nature, it is of infinite consequence to mark with precision, the line to which the law will justify the defendant in going, and will punish him if he goes beyond it." Munns v. De Nemours, 17 Fed. Cas. 993, 995 (C.C.D.Pa.1811) (No. 9,926). The Virginia Supreme Court recently espoused this same attitude when it held that such actions "have been circumscribed by *807 limitations more stringent than those applied to most other tort actions." Bain v. Phillips, 217 Va. 387, 228 S.E.2d 576, 581 (1976). Numerous commentators also have expressed this sentiment, including Lord Holt more than a hundred years ago, Martin Newell at the turn of the century, and Prosser and Keeton during our own era. See N. Newell, Newell on Malicious Prosecution 21 (1892); W. Prosser & W. Keeton, Prosser & Keeton on the Law of Torts 870-71, 882 (1984). See also Stewart v. Sonneborn, 98 U.S. 187, 8 OTTO 187, 25 L.Ed. 116 (1878), Alexander v. Petty, 35 Del.Ch. 5, 108 A.2d 575, 577 (1954); Miller v. Pennsylvania R. Co., 371 Pa. 308, 89 A.2d 809, 810 (1952); Penton v. Canning, 57 Wyo. 390, 118 P.2d 1002, 1004-05 (1941); 52 Am.Jur.2d Malicious Prosecution § 81, at 187-89; 54 C.J.S. Malicious Prosecution § 3, at 954. We believe that this public policy coupled with current crime rates mandates that we reexamine the element of malice in a malicious prosecution as it is defined for the jury in our present MAI 16.01.

A person suing on a theory of malicious prosecution must plead and prove six elements: (1) the commencement of a prosecution against the plaintiff; (2) the instigation by the defendant; (3) the termination of the proceeding in favor of the plaintiff; (4) the want of probable cause for the prosecution; (5) the defendant's conduct was actuated by malice; and (6) the plaintiff was damaged. S. Greenleaf, II Greenleaf on Evidence §§ 449-59 (2nd ed. 1844). See also Stafford v. Muster, 582 S.W.2d 670, 675 (Mo. banc 1979). We focus our attention on the fifth and crucial element of malice; and, because malice also justifies a punitive damage award, we must address the connection between the type of malice necessary to establish liability and that which is necessary to sustain an award of punitive damages.

The word "malice" connotes a culpable mental state, but the term lacks any uniform definition. In a well-researched opinion in 1917, the Arizona Supreme Court observed that "[t]here are different kinds and degrees of malice as well as the nature of the evidence going to prove its existence." Griswold v. Horne, 19 Ariz. 56, 165 P. 318, 323 (1917). Indeed, one eminent scholar commented that the term is so "slippery" that it should be banished from the law. Ames, "How Far an Act May Be A Tort Because of the Wrongful Motive of the Actor," 18 Harv.L.Rev. 411, 422 n. 1 (1905). We have retained the term and, not surprisingly, the different kinds and degrees of malice have often been confused throughout the development of the law in Missouri. The result is that we now utilize a single definition of malice and it is highly questionable whether it properly describes either the malice required to sustain a malicious prosecution or that required to sustain punitive damages in a malicious prosecution.

In general, the law recognizes three degrees of malice. First, there is malice in its universal sense as understood in the popular mind, which means "ill will, spite, personal hatred, or vindictive motives." Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 125 P.2d 681, 689 (1942). Such malicious conduct is founded in ill will, "and is evidenced by an attempt to vex, injure, or annoy another." Davis v. Hearst, 160 Cal. 143, 116 P. 530, 537 (1911). See also 54 C.J.S. Malicious Prosecution § 41, at 1004. This type of malice is commonly referred to as "malice in fact" or "actual malice."

A second degree of malice is malice in its legal sense. The definition of legal malice has a broader meaning than the popularly understood definition of malice in fact. Malice in its enlarged legal sense embraces any improper or wrongful motive—that is, malo animo. See S.S. Kresge Co. v. Ruby, 348 So.2d 484, 489 (Ala.1977); Brodie v. Hawaii Auto Car Deal. Ass'n, 2 Hawaii App. 316, 631 P.2d 600, 605 (1981), rev'd on other grounds, 65 Hawaii 598, 655 P.2d 863 (1982); Owens v. Kroger Co., 430 So.2d 843 (Miss.1983); Peasley v. Puget Sound Tug & Barge Co., supra, 125 P.2d at 689. See generally 54 C.J.S. Malicious Prosecution § 41, at 1004. *808 Some courts also have included within legal malice conduct which is so reckless or wantonly and willfully in disregard of one's rights that a trier of fact could infer from such conduct bad faith or malo animo. See e.g., Richter v. Neilson, 11 Cal.App.2d 503, 54 P.2d 54 (1936); Hugee v. Pennsylvania R. Co., 376 Pa. 286, 101 A.2d 740 (1954); Lewis v. Williams, 618 S.W.2d 299 (Tenn.1981); Yelk v. Seefeldt, 35 Wis.2d 271, 151 N.W.2d 4 (1967). Although he incorrectly termed it "malice in law", Newell aptly defined this type of malice as something less than malice in fact and "simply ... a general wickedness or intent on the part of a person; a depraved inclination to do harm, or to disregard the rights or safety of mankind generally." W. Newell supra, at 239.

Third, there is "malice in law." This degree of malice is properly defined as a wrongful act done intentionally without just cause or excuse. See generally 54 C.J.S. Malicious Prosecution § 42, at 1005. The law imputes malice "to a wrongdoer from the mere intentional doing of a wrongful act to the injury of another without legal justification or excuse." Freezer v. Miller, 163 Va. 180, 176 S.E. 159, 168 (1934). See also Connelly v. White, 122 Iowa 391, 98 N.W. 144, 145 (1904). For example,

[i]f one gives a perfect stranger unaware a blow with a deadly weapon likely to produce death, he does it of malice, because he does it intentionally without just cause or legal excuse. If he maims cattle without knowing whose they are, if he poisons a well of drinking water without knowing who is likely to drink of it, he does it of malice, because it is a wrongful act and done intentionally without any legal justification or excuse. This is the malice of the law—a malice of pleading and proof made necessary by definitions of offenses against the law or the exigencies of the case. It is established by a conclusive legal presumption, and proof of malice in fact is not required.

Griswold v. Horne, supra, 165 P. at 323. An all-too-often unrecognized difference exists between this type of malice in law and malice in its legal sense. The former rests upon a legal presumption independent of any proof concerning a defendant's mental state, while the latter requires either direct or indirect proof of a mental state somewhat less culpable than malice in fact. See generally L. Frumer & M. Friedman, 4E Personal Injury § 1.02[3] at 31 (1984).

The weight of authority clearly indicates that a malicious prosecution action can be supported only by either actual or legal malice. Malice in law is insufficient. A plaintiff must establish that the defendant acted either with ill will toward the plaintiff or from any other improper motive. Treatise writers are in general agreement that, at the very least, an improper or wrong motive is essential. Justice Holmes, for example, commented upon the relevancy of a defendant's moral condition in such suits:

Such a limitation would stand almost alone in the law of civil liability. But the nature of the wrong is peculiar, and, moreover, it is quite consistent with the theory of liability here advanced that it should be confined in any given instance to actual wrongdoing in a moral sense.

O. Holmes, The Common Law Tradition 113 (M. Howe ed. 1963). Over one hundred years later, Prosser and Keeton wrote:

The plaintiff has the burden of proving that the defendant instituted the proceeding "maliciously." This unfortunate word, which has so much vexed the kindred law of defamation, requires no less in the way of definition here. It means something more than the fictious "malice in law" which has been developed in defamation cases as a cloak for strict liability. There must be "malice in fact." At the same time it does not necessarily mean that the defendant was inspired by hatred, spite or ill will; and there is authority that if his purpose was otherwise a proper one, the addition of the incidental fact that he felt indignation or resentment toward the plaintiff will not make him liable. As in the cases of *809 qualified privilege in defamation, the courts seem to have looked to the primary purpose behind the defendant's action. If he is found to have acted chiefly to give vent to motives of ill will, "malice" is established. But it is found also where his primary purpose was merely something other than the social one of bringing an offender to justice ...

W. Prosser & W. Keeton, supra, at 882-83. Other similar expressions may be found concerning the required type of malice.

Ordinarily, in order to constitute malice supporting an action for malicious prosecution, there must be malus animus, denoting that the person who instituted the original proceeding was actuated by wrong motives.

54 C.J.S. Malicious Prosecution § 42, at 1004-05. See also T. Cooley, A Treatise on the Law of Torts 184 (1879); F. Pollock, A Treatise on the Law of Torts, 183, 392 (1894); 52 Am.Jur.2d Malicious Prosecution § 46, at 214. These authorities illustrate that while ill will, hatred or spite may not be necessary to establish the cause of action, the plaintiff must prove that the defendant was at least actuated by an improper or wrongful motive.

Decisions from numerous state courts are no less forceful in asserting that more than malice in law is needed to establish the elements of a malicious prosecution. Some courts require actual malice, while other courts hold that malice in its legal sense is sufficient. The Arizona Supreme Court has held that "in this sort of action it is absolutely essential to its existence that malice in fact as distinguished from malice in law be present." Griswold v. Horne, supra, 165 P. at 323. The North Dakota Supreme Court has held that legal malice is sufficient to support the action, and then it defined legal malice as "any unjustifiable motive." Kolka v. Jones, 6 N.D. 461, 71 N.W. 558, 562 (1897). The highest court of Virginia has also held that "[t]he malice which is an essential element of an action for a malicious prosecution is actual malice, or malice in fact, and its existence must be proven as any other fact." Freezer v. Miller, supra, 176 S.E. at 168. The court further defined actual malice as "malus animus, i.e., a wrong motive or purpose." Id. 176 S.E. at 169. With the exception of all but a few state courts,^[1] including Missouri, the overwhelming majority of decisions require ill will or some improper or wrongful motive. See e.g., National Security Fire & Casualty Co. v. Bowen, 447 So.2d 133, 140 (Ala.1983); Griswold v. Horne, supra; Albertson v. Raboff, 46 Cal.2d 375, 295 P.2d 405, 410 (1956); Suchey v. Stiles, 155 Colo. 363, 394 P.2d 739, 741 (1964); Smith v. Globe Ford, Inc., 39 Conn.Supp. 27, 467 A.2d 1262, 1266 (1983); Stidham v. Diamond State Brewery, Inc., 41 Del. 330, 21 A.2d 283, 285 (1941); Ammerman v. Newman, 384 A.2d 637, 640-41 (D.C.1978); Erp v. Carroll, 438 So.2d 31, 40 n. 3 (Fla.App.1983); Iowa Mutual Ins. Co. v. Gulf Heating & Refrig. Co., 184 So.2d 705, 706 (Fla.App.1966); Brodie v. Hawaii Auto Ret. Gas Deal. Ass'n, supra; Berlin v. Nathan, 64 Ill.App.3d 940, 21 Ill.Dec. 682, 381 N.E.2d 1367, 1372 (1978); Carbaugh v. Peat, 40 Ill.App.2d 37, 189 N.E.2d 14, 19 (1963); Satz v. Koplow, 397 N.E.2d 1082, 1083 (Ind.App.1979); Foltz v. Bock, 89 Kan. 381, 131 P. 587 (1913); Illinois Central R. Co. v. Anderson, 206 Ky. 600, 268 S.W. 311, 312 (1925); O'Connor v. Hammond Police Dept., 439 So.2d 558, 561 (La.App.1983); Coleman v. Kroger Co., 371 So.2d 1186, 1189 (La.App.1979); Glover v. Fleming, 36 Md.App. 381, 373 A.2d 981, 983 (1977); Sottile v. DeNike, 20 Mich.App. 468, 174 N.W.2d 148 (1969); Owens v. Kroger Co., supra, at 847; Harvill v. Tabor, 240 Miss. 750, 128 So.2d 863, 864-65 (1961); Miller v. Watkins, 653 P.2d 126, 131 (Mont. 1982); Hackler v. Miller, 79 Neb. 209, 114 *810 N.W. 274 (1907); Martin v. City of Albany, 42 N.Y.2d 13, 364 N.E.2d 1304, 396 N.Y.S.2d 612 (1977); Rogers v. Barbera, 170 Ohio St. 241, 164 N.E.2d 162, 165 (1960); Fleet v. May Dept. Stores, Inc., 262 Or. 592, 500 P.2d 1054, 1059 (1972); Hugee v. Pennsylvania R. Co., supra; Curley v. Automobile Finance Co., 343 Pa. 280, 23 A.2d 48 (1941); Nagy v. McBurney, 120 R.I. 925, 392 A.2d 365, 367-68 (1978); Huntley v. Harberts, 264 N.W.2d 497 (S.D. 1978); Stringer v. Cross, 564 S.W.2d 121 (Tex.Civ.App.1978); Creelman v. Svenning, 1 Wash.App. 402, 461 P.2d 557 (1969); Consumers Filling Station Co. v. Durante, 79 Wyo. 237, 333 P.2d 691, 699-700 (1958); Meyer v. Ewald, 66 Wis.2d 168, 224 N.W.2d 419, 422 (1974). See also Ga.Code § 51-7-2 (1982).

Some of these courts hold that legal malice also encompasses conduct which is "wrongful and willfully done, with a consciousness that it is not according to law or duty." Wiggin v. Coffin, 29 Fed.Cas. 1157, 1159 (C.C.D.Me.1836) (No. 17,634). See also Lunsford v. Dietrich, 9 So. 308, 310 (Ala.1891); Nyer v. Carter, 367 A.2d 1375, 1378-79 (Me.1977); Kolka v. Jones, supra, 71 N.W. at 562; Margolis v. Telech, supra. Care must be taken to distinguish this type of malice from negligence:

Malice is distinguishable from mere negligence in that it arises from absence of purpose. The characteristic of negligence is inadvertence or an absence of an intent to injure. This does not imply that the act was done involuntarily or unconsciously, but merely that the person doing it was not conscious that the act constituted a want of reasonable care. If so conscious the act becomes malicious. The books agree that the prosecution need not have been prompted by malevolence or any corrupt design, nor necessarily involve spite or hatred toward the person accused. It is enough if it be the result of any improper or sinister motive and in disregard of the rights of other ..., or if done willfully and purposely ... But to constitute malice there must have been (1) a motive or purpose, and (2) it must have been an improper one.

Jenkins v. Gilligan, 131 Iowa 176, 108 N.W. 237, 238 (1906) (citations omitted). In short, the conduct must be such that a jury could infer and find an improper motive. Another court opined that "[w]hile it is a fact that a willful and wanton disregard for the fact may be the basis for malice, such wanton and willful conduct must be of such a nature and character as to evince a hostile or vindicative motive." Yelk v. Seefeldt, supra, 151 N.W.2d at 8. (Emphasis added). The defendant's act is deemed improper because the defendant is consciously doing an act which he knows society regards as reprehensible. These opinions, therefore, demonstrate that the requisite legal malice is established when the defendant willfully institutes a criminal proceeding while conscious that such an action is wrong or unlawful. The defendant must either proceed with an improper or wrongful motive or consciously act with such wanton disregard for the rights of others that a jury may, but need not, infer from such conduct an improper motive.

Contrary to the weight of authority, Missouri has retained a malice in law standard for the definition of malice in malicious prosecution actions. "The element of malice in malicious prosecution is defined as the intentional doing of a wrongful act without legal justification. It may be inferred from the absence of probable cause and does not necessarily involve hatred or ill will." Parthenopoulos v. Maddox, 629 S.W.2d 563, 571 (Mo.App.1981). See also Muza v. Cash Bargain Lumber Co., 586 S.W.2d 403, 406 (Mo.App.1979); Palermo v. Cottom, 525 S.W.2d 758, 765 (Mo.App. 1975). This is essentially the definition found in MAI 16.01:

The term ["malice"] ["malicious"] ["maliciously"] as used in this [these] instruction[s] does not mean hatred, spite or ill will, as commonly understood, but means the doing of a wrongful act intentionally without just cause or excuse.

Although Missouri has dubbed and titled this definition "legal malice," it is in fact *811 what we have described as "malice in law." The instruction does not require the jury to find that the defendant acted with an improper purpose. Indeed, this is nothing more than the common generic definition of an intentional tort:

[i]t is a general rule of the common law that a cause of action arises whenever one person, by an act not in the exercise of a lawful right, causes loss or does damage to another with an intent, either actual or constructive, to produce such harm, without just or lawful excuse or justifiable cause or occasion.

74 Am.Jur.2d, Torts § 18, at 635. Prosser and Keeton explain that this definition was intended for use in such cases where a "cloak for strict liability" was intended. W. Prosser & W. Keeton, supra, at 882. The two examples are defamation suits and suits for false arrest or imprisonment.^[2] The Minnesota Supreme Court has appropriately noted that "[t]he malice which is the essential element of malicious prosecution is not, like the malice essential in libel, slander, and false imprisonment, a mere fiction of the law; it is a state of mind to be proven as a fact." Hanowitz v. Great Northern Ry. Co., 122 Minn. 241, 142 N.W. 196, 197 (1913) (emphasis added). Not surprisingly, therefore, the few states, including Missouri, adopting this malice in law standard for malicious prosecution actions have been singled out for criticism. See 54 C.J.S. Malicious Prosecution, § 42, at 1005; Freezer v. Miller, supra, 176 S.E. at 168, n. 8.

The malice in law standard in Missouri can be traced to two early decisions Goetz v. Ambs, 27 Mo. 28 (1858) and Hill v. Palm, 38 Mo. 13 (1866). Goetz involved awarding punitive damages in an assault case, and the Court equated malice with an intentional tort. Goetz v. Ambs, supra, at 33. In Hill, the Court without reasoning or discussion approved an instruction in a malicious prosecution action which was a combination of malice in fact and malice in law, thereby permitting recovery to be based on the lesser, malice in law. The instruction was as follows:

There are two kinds of malice; malice in fact, and malice in law. The former, in common acceptation, means ill-will against a person; the latter, a wrongful act done intentionally. If, therefore, the jury believes from the evidence that the defendant caused plaintiff to be arrested for larceny ..., and that the defendant was moved thereto by ill-will against the plaintiff, or that the prosecution was wrongfully instituted by the defendant... the jury must find for the plaintiff.

Hill v. Palm, supra, at 15. The Hill instruction was followed in Sharpe v. Johnston, 59 Mo. 557 (1875). In Sharpe, the jury was instructed that "[m]alice means a wrongful act done intentionally without legal justification or excuse." Id. at 571.

The Court in these early cases erroneously assumed that the definition of malice could be culled from defamation cases where malice served as a cloak for strict liability. The only citation supporting the instruction in Goetz is to a federal circuit court opinion. Goetz v. Ambs, supra, at 33. In that federal decision, however, Justice Story was interpreting a federal criminal statute, and he relied heavily upon the language in Bromage v. Prosser, 4 Barn & C. 247 (1825). United States v. Taylor, 28 Fed.Cas. 31 (D.Mass.1837) (No. 16,442). Bromage involved a defamation action and Judge Bayley held that malice was implied from the publication of false words in a case not involving privileged communications. Bromage v. Prosser, supra, at 256. "[I]f the matter is slanderous, malice is implied, it is sufficient to prove publication; the motive of the party publishing are never gone into." Id. at 256. According to Bayley, this type of malice was defined as *812 "a wrongful act, done intentionally, without just cause or excuse." Id. at 255. In Sharpe, the prevailing party supported the malice instruction by a citation