Counsel insist upon rehearing that there may be a malicious prosecution without the issuance of process, under section 6269, as construed in the case *Page 531 of Sanders v. Davis, 153 Ala. 375, 44 So. 979. As we understand this case, it follows the former decision, and while there is an expression of the writer, not decisive of the case, that, in view of the above statute, it may not be accurate to say in every case it is necessary, in order to count on malicious prosecution, to aver the issuance of process and arrest thereunder, yet the averments must be such as to show a legal arrest as the commencement of a valid judicial proceeding. We do not construe this expression as holding that an arrest made by an officer upon the mere oral charge or direction of a third person could amount to such a lawful institution of a prosecution as to render the said third person liable for a malicious prosecution, as distinguished from false imprisonment, in case the arrest was wrongful and without probable cause. On the other hand, the opinion further states that —
"A court for malicious prosecution should at least aver that the defendant had made such a formal charge as would have justified the officer to make the arrest, based on that charge, and it is not sufficient to aver merely that the defendant caused the plaintiff to be arrested under a charge made verbally to a policeman."
It was also held in the recent case of Rhodes v. McWilson,202 Ala. 68, 79 So. 462, 1 A.L.R. 568, that in order for an officer to justify an arrest upon the charge of another that the charge must be written and formal, as distinguished from an oral request or direction. There is nothing whatever in this record to show that this defendant instituted a prosecution against this plaintiff by making affidavit or otherwise, other than to verbally direct or acquiesce in the arrest, so as to justify the jury in disregarding the defendant's given charge 10.
Our attention is next called to the case of Parisian Co. v. Williams, 203 Ala. 378, 83 So. 122. We do not understand that case as being opposed to the rule laid down in the Hines and Wolf Cases, supra, and as recognized in the case of Talley v. Whitlock, 199 Ala. 36, 73 So. 976, but as merely following the exception to the rule as brought out in the Talley Case, that when charges are given which are so inconsistent that the verdict of the jury cannot conform to all of them, that the same will not be disturbed because it does not comply with an erroneously given charge, which is in conflict with other properly given charges. Indeed, this exception to the rule was recognized in the original opinion in this case, wherein it was observed:
"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."
We still think that this case was tried upon such a misconception of the course of action as presented by the complaint and under such a confusion as to the material ingredients of same that the code of justice requires a reversal and retrial.
Rehearing overruled.
SAYRE, GARDNER, and MILLER, JJ., concur.