Hawkins v. Collins

59 So. 694 | Ala. Ct. App. | 1912

de GRAFFENRIED, J. —

This Suit was brought by appellee against appellant for damages for a malicious prosecution, which the appellee claims the appellant instituted against him. The complaint makes no claim for attorney’s fees incurred by appellee on account of such alleged malicious prosecution. While, in an action for a malicious prosecution, the plaintiff is entitled to recover, if entitled to recover anything, his reasonable attorney’s fees incurred in defending himself against such prosecution, the plaintiff must, as a necessary prerequisite to their recovery, specifically claim such fees in his complaint as one of the elements of his damages. He is not entitled to recover them under a mere general allegation of damages in the complaint. In such actions the reasonable amounts so paid attorneys are not general, but special, damages; and such damages must therefore be specially pleaded. The attorney’s fees so recoverable in such actions are the reasonable amounts so paid attorneys, and not the actual amounts so paid. The actual amounts so paid may not have been reasonable, and the law in such actions permits only the reasonable amount so paid to be recovered.^ — -Tutwiler Coal, Coke & Iron Co. v. Tuvin, 158 Ala. 657, 48 South. 79.

While' in cases like the present it may be stated, as a general proposition, that all damages which flow from. the malicious prosecution as the natural and proximate results thereof are recoverable, nevertheless, under a complaint claiming general damages, only such damages’ as necessarily result from the malicious prosecution can be recovered. “The defendant is presumed to know the damages which necessarily result from his own acts; and consequently he cannot be taken by surprise when evidence of such resulting damage is admitted and shown under the ad damnum or general allegations of damages. * * Special damages, which are the natural, but not necessary, result of the injury complained of, must be specially alleged. — Irby v. Wilde, 150 Ala. 402, 43 South. 574; 5 Ency. of Pl. & Pr. pp. 717, 719.

2. It will be seen from the above decisions of the Supreme Court that in actions for malicious prosecutions, false imprisonments, assaults and batteries, and the like, the courts are generally disposed to hold that reasonable attorney’s fees, loss of time, the amounts paid physicians, etc., are special, and not general, damages, and that such elements of damages must be specially claimed as a prerequisite to their recovery. As this case must he again tried, the appellee can, with leave of the trial court, so aménd his complaint as to meet all the objections of the appellant on the question of special damages, and we do not deem it necessary to further discuss the subject.

3. In an action for- a malicious prosecution, it is essential to the plaintiff’s recovery that the prosecution should have been instituted maliciously and without probable cause. If probable cause for tbe institution of tbe prosecution existed, then the action for malicious prosecution falls to tbe ground. If tbe prosecution was instituted without probable cause and without malice, tbe action for a malicious prosecution also falls to tbe ground. In sucb a case tbe burden is upon tbe plaintiff to show that tbe prosecution was instituted against him by tbe defendant maliciously and without probable cause. — Lunsford v. Dietrich. 93 Ala. 565, 9 South. 308, 30 Am. St. Rep. 79; Sanders v. Davis, 153 Ala. 375, 44 South. 979.

When there was no probable cause for tbe institution of the prosecution by tbe.defendant to tbe action for a malicious prosecution, that fact may authorize a jury to infer that tbe defendant was instigated by malice towards tbe plaintiff when be instituted sucb prosecutiou. See charge 3 in Rutherford v. Dyer, 146 Ala. 665, 40 South. 974.

We have above discussed tbe only questions of any moment presented by this record, and tbe above opinion indicates wherein tbe trial court committed reversible error.

Reversed and remanded.