97 Ala. 535 | Ala. | 1892
— It was admitted on the trial below that defendants had been put in possession of the land described in the evidence and were in possession of it at the time the proceeding under which plaintiff was arrested for alleged threatened breach of the peace was instituted. If the court erred, therefore, in excluding the record of the suit in ejectment under a judgment and writ of assistance in which defendants so held possession, the error' was of no possible detriment to defendants.
The court did not err in admitting evidence that plaintiff at the time of his alleged malicious prosecution and arrest was a manned man. The deprivation of the society of one’s wile and family, the arrest and taking away of the plaintiff from his wife is a proper item of damage in this class of actions; and proof of the marital relation is a necessary link in the evidence to establish such damage. — 14 Am. & Eng. Encyc. of Law p. p. 71-73, and authorities there cited. It was also competent for plaintiff to. show as an item of the damages sustained by him, the expenses incurred in the way of attorney fees and the like, in defending the alleged malicious prosecution. — Marshall v. Betner, 17 Ala. 832; 14 Amer. & Eng. Encyc. of Law, note p. 93.
It appeared from the amended complaint in a former suit by this plaintiff against these defendants for malicious prosecution wherein plaintiff was charged with unlawfully gathering and removing the crop grown on the land referred to that no claim was made in that suit for damages claimed in this, and, the wrong alleged in the two suits being distinct, the alleged malicious prosecutions being for distinct offenses, the court properly excluded the record in the former suit
The defendants had instituted a prosecution against plaintiff for the purpose of having him bound over to keep the peace. A part of the evidence relied on as going to show that he was about to commit breaches of the peace upon the persons of the defendants was to the effect that while defendants were in possession of the land and engaged in gathering the crop therefrom, plaintiff went on the land where the crop was growing with his gun and said that if the defendant who had harvested a part of the crop attempted to gather what remained of it he, the plaintiff, would shoot him. The fact of plaintiff’s being there with his gnu, taken in connection with the information received by defendant of the alleged threat to use it, tended to show, of course, that defendants had probable cause fox believing that plaintiff intended to commit a breach of the peace. If it Avas plaintiff’s habit “to carry his gun Avith him to the field and going to his plantation to work,” and this habit mas known to the defendants, evidence of it was admissible as tending to show that the presence of the weapon on the particular occasion was due to this custom of plaintiff and not to any purpose on his part to use it in the commission of a breach of the peace; but there is no evidence that defendants had any knowledge of this habit, and we are unable to see that the fact of its existence, if wholly unknown to them, could have exerted any influence in determining the question of defendants’ malice or whether they had probable cause for believing plaintiff intended to commit violence upon their persons. Yet it is very probable that it was accorded an influence by the jury. The testimony of this habit, without any evidence that defendants knew of it, was therefore improperly admitted, and must operate a reversal of the judgment. — Josselyn v. McAllister, 25 Mich. 45.
The charges given by the court and the rulings on charges requested by defendants are free from error.
Reversed and remanded.
