69 So. 85 | Ala. | 1915
In the more recent case of Sanders v. Davis, 153 Ala. 375, 380, 44 South. 979, 981, it is said: “The averments must show: First, a judicial proceeding; second, that it was instigated by the defendant; third, want of probable cause; fourth, malice; fifth, the termination of the judicial proceeding favorably to the plaintiff; and, sixth, the damage. — 13 Ency. Pl. & Pr. 427.”
We do not mean in this decision to recede from wha.t is said in these two cases as to the sufficiency of counts for malicious prosecution, but hold to what is there said. We hold — what we have many times reiterated — that Avhile the code form is sufficient, it need not be literally followed. It is sufficient to follow it in substance. Neither do we decide that infirmities of material allegations can be cured by the evidence or by charges of the court, because evidence without allegation is as impotent as allegation without proof, and pleadings cannot be settled by charges of the court. But we may look to the evidence, the plead
There was no error in excluding the answer of the witness Campbell that the driver refused to give up the bottles, and that witness instructed him to call up the factory.
The mental status, when relevant, is, under our practice and the law of this state, a matter of inference, to be ascertained from the circumstances of the case by the jury, and as to the existence or nonexistence of such status witnesses are not allowed to give opinions. That the law is different in most states has been repeatedly conceded by this court, but we have never departed from our original holding.
“I charge you that if you believe that before the institution of said prosecution the prosecutor sought advice of learned counsel and made a full and fair statement of all the facts within his knowledge, or which by reasonable effort he could have known in reference to the alleged guilt of plaintiff of a violation of the law as charged, and that said counsel advised the prosecutor that he had probable cause to swear out the warrant, or institute prosecution as alleged, and that the prosecutor acted on said advice in good faith, then as a matter of law, this would be a complete defense to plaintiff’s cause of action in this case for malicious prosecution, and you cannot find a verdict against defendant for a malicious prosecution.”
There was no error in overruling the motion for a new trial.
There are 119 assignments of error. We have treated those insisted upon in argument, and we find no reversible error.
Affirmed.