The argument of counsel for appellant in support of the insistence that the defendant (appellant) was due the affirmative charge seems to be based upon the assumption that the entire cause of action was founded upon a complaint seeking damages for false imprisonment; the contention being that, as there was not sufficient evidence of imprisonment or restraint of plaintiff, he was not therefore entitled to recover.
We think, however, that count 1 of the complaint clearly sets forth an action for trespass to goods, and comes within the influence of the following quotation from Burns v. Campbell,71 Ala. 271:
"The measure of damages in actions for trespass to goods, where the taking is unlawful without more, is generally the value of the goods, or the amount of injury done to them, as the case may be, with interest to the date of judgment. Lienkauf v. Morris, 66 Ala. 406. But when the taking is perpetrated in a rude, wanton, reckless, or insulting manner, or is accompanied with circumstances of fraud, malice, oppression, or aggravation, or even with gross negligence, the party injured is entitled to recover exemplary damages. These principles are too well settled to require discussion."
In Mattingly v. Houston, 167 Ala. 167, 52 So. 78, it was said:
"We do not doubt that, in assessing damages for a trespass to property, mental suffering, established in the proof as the proximate and natural consequence of the trespass committed with circumstances of insult or contumely, is to be taken into account and compensated as a matter of right."
See, also, Engle v. Simmons, 148 Ala. 92, 41 So. 1023, 7 L.R.A. (N.S.) 96, 121 Am. St. Rep. 59, 12 Ann. Cas. 740.
The evidence for the plaintiff was in support of this count of the complaint, and in accord with the principles declared in the above authorities. The affirmative charge was therefore properly refused.
The evidence was without dispute that, at the time of the purchase of the clothes, the plaintiff was in fact still in the employ of the Louisville Nashville Railroad Company, and so remained until 6 o'clock that evening. It may be very seriously questioned that, from a strict legal standpoint, the defendant's evidence could make out actual false representation on the part of plaintiff sufficient to sustain a criminal charge.
However that may be, we are of the opinion that the charge, which appears in the statement of the case, was properly refused for the reason that it pretermits that such false representation was made with intent to defraud or injure the defendant, which is an essential element of criminality in cases of this character. Section 6920 of the Code. We also think the charge had misleading tendencies and may be otherwise faulty, and that the court committed no error in its refusal. In given charge 2 the defendant obtained all to which he was entitled *Page 613 by way of what was sought in instructions to the jury in refused charge 3.
After a careful review of all the evidence in the cause, and in the light of the well-recognized rule set forth in Central of Ga. Ry. Co. v. White, 175 Ala. 60, 56 So. 574, we are unwilling to disturb the verdict of the jury as being excessive.
These are the only questions presented on this appeal. Finding no error in the record, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.