This case was submitted to the jury upon count 7 of the complaint alone. This count does not charge that the agents or servants of the defendant caused the issuance of process against the plaintiff and did not therefore charge a malicious prosecution as distinguished from false imprisonment. Sanders v. Davis, 153 Ala. 375, 44 So. 979, and cases there cited. The count was sufficient, however, as one for false imprisonment, notwithstanding it contained some needless averments, which the plaintiff was required to prove. Counsel for appellant do not seriously question the sufficiency of said count as one for false imprisonment, but insist that, as it was treated as for malicious prosecution, the trial court should have sustained its demurrer thereto as such. Unquestionably it was lacking in a material averment as for a malicious prosecution, but, being sufficient as for false imprisonment, we cannot reverse the trial court for overruling the demurrer.
While there are some written charges given and refused, dealing with false imprisonment as well as malicious prosecution, it is evident that the trial court and counsel on both sides construed the count as being for malicious prosecution. The trial court instructed the jury as to the essentials of a malicious prosecution, and directed that there must have been the institution or instigation of a prosecution by the agents or servants of the defendant acting within the scope of their authority before there could be a verdict against the defendant. There was no proof of the making of an affidavit or the legal institution of a prosecution by any agent of the defendant against the plaintiff. Rhodes v. McWilson, 202 Ala. 68, 79 So. 462, 1 A.L.R. 568. And while there may have been evidence from which the jury could infer that an agent of the defendant caused the arrest, yet if it was wrongfully caused, it was false imprisonment; no prosecution having been instituted by said agent. Indeed, treating the count as one for malicious prosecution, the trial court should have given the affirmative charge for the defendant. It is sufficient to say that, whether the case was tried upon the correct theory or not, the verdict of the jury should have responded to the issues presented, and should not have been in disregard of the evidence or instructions of the court. The verdict here was opposed to the instructions of the court, especially defendant's given charge (which we designate as 10).
"It is essential to an orderly administration of justice that juries should obey the instructions of the court. If the court is in error in giving instructions, the jury should, nevertheless, obey the instructions, and the injured party would have recourse by appeal to this court, which is the proper forum to pass upon the actions of the trial court." Fleming Hines v. L. N. R. R. Co., 148 Ala. 527, 41 So. 683; Wolf v. Delange, 150 Ala. 445, 43 So. 856; Talley v. Whitlock, 199 Ala. 36, 73 So. 976.
In this last case the court seems inclined to hold that a verdict will not be disturbed, if it conforms to certain charges of the court, though in conflict with other charges. In other words, if the trial court gives conflicting or inconsistent charges, a verdict in obedience to one will not be disturbed, because not in accord with the conflicting charge. The charges here, however, are not so conflicting as to justify the jury in finding for the plaintiff, although there was no proof of a legal prosecution by the agent of the defendant.
Counsel for appellee have in their brief sought refuge in rule 45 (61 So. ix) upon the theory that, notwithstanding1 this case was treated and tried as one for a malicious prosecution, the evidence warranted a verdict for the plaintiff for false imprisonment. We do not think that rule 45 was intended to permit verdicts to stand when rendered upon a different issue and cause of action from the one upon which the case was tried, especially when two theories are not harmonious and are inconsistent. There is a decided distinction between malicious prosecution and false imprisonment; one is a trespass, the other is not; one is a wrongful arrest, the other is the wrongful, but lawful, institution of a prosecution; and the defenses are materially different. The trial court erred in not granting the defendant's motion for a new trial, and the judgment is reversed and the cause is remanded, in order that this case may be retried upon issues conformable to the cause of action as set out in the complaint.
Reversed and remanded.
SAYRE, GARDNER, and MILLER, JJ., concur.
1 175 Ala. xxi.
On Rehearing.