In addition to what has been said as to charge A, it may be added that at the instance of appellant the trial court gave the written charge which specifically and directly charged the jury the fact that the charge had been judicially investigated and the prosecution ended would not of itself justify a verdict against the defendant. This proposition was asserted in various written charges given at request of defendant.
As to the third assignment of error, character evidence is material in actions of this kind as relevant upon the existence vel non of probable cause. Probable cause is relevant upon the issue or existence of malice. If at the time of the arrest probable cause existed, then the arrest is not malicious. So it is perfectly plain that upon this phase it would only be the character of the person arrested as it existed at the time of and previous to the arrest. It is now insisted that this evidence was competent for impeachment purposes. John Andre, the witness, testified that the general reputation of plaintiff was bad. This was sufficient for impeachment purposes. Character is proved by general reputation and not by specific acts. Jackson v. State,106 Ala. 12, 17 So. 333; Byers v. State, 105 Ala. 40, 16 So. 716.
As to the fourth assignment of error: No reference was made to the case of Ex parte *Page 92 L. N.R.R. Co., 203 Ala. 328, 83 So. 52, in the opinion for this reason: The Supreme Court held in that case that the right of the passenger to a safe and unmolested carriage on defendant's train was a right growing out of a contractual relation between plaintiff and defendant railway company; that when the conductor assaulted and beat the passenger this was a breach of the contract; and that the proper action therefore was in case and not in trespass.
Upon the proposition that the allegations of the third count of the complaint in this case are not sustained by the proof, the authorities cited in the original opinion are ample and sufficient. Jones testified, and it is admitted by appellant, that when Jones arrested plaintiff he (Jones) was acting in the line of his assigned duty. The case of Epperson v. First Nat. Bank of Reform, 209 Ala. 12, 95 So. 343, is authority for the proposition that, "In the line of his assigned duties, the agent stands in the place of the corporation." L. N.R.R. v. Whitman,79 Ala. 328.
Application overruled.
FOSTER, J., not sitting.