This is the second appeal in this cause. 205 Ala. 529.1 The trial now under review was had on count A and several pleas amounting to the general issue. Appellant, defendant, attacks that ruling of the trial court sustaining the sufficiency of this count against demurrer. In Standard Oil Co. v. Davis,208 Ala. 565, 94 So. 754, this court held a similar count good, and no sufficient reason now appears why that judgment should be changed or doubted. See, also, Epperson v. First Nat. Bank of Reform (Ala. Sup.) 95 So. 343.2 As for the facts, under the pleadings in the cause the only proper inquiries were as to defendant's responsibility for plaintiff's arrest, and, if responsible, the amount of damages to be awarded. Rhodes v. McWilson, 192 Ala. 675, 69 So. 69, and authorities there cited.
Appellant insists that it was due the general affirmative charge. This contention was made in Standard Oil Co. v. Davis, supra, a companion case, in which the evidence was substantially the same as it is here, and was there denied. The evidence has been again examined, and the court is of opinion that the general charge was properly refused.
Reversible error cannot be predicated of the refusal of charges which we have marked 1 and 2. They asserted correct propositions of law (Standard Oil Co. v. Davis, supra), but were substantially given in the charge designated by us as (a).
Defendant requested charges to the effect that plaintiff should not be allowed to recover damages for nervousness or fright, both alleged in the complaint to have resulted from the false arrest alleged. It is urged not that these were improper elements of damages, but that there was no proof of the damages so alleged. Damages for mental suffering, when alleged, are recoverable. Under the rule prevailing in this state plaintiff would not have been allowed to testify that he suffered mental anguish, that he was nervous, or that he was frightened. It is for the jury, therefore, upon the whole evidence in the particular case, to say whether plaintiff suffered mental pain, including, as we think, nervousness and fright. There was in this case evidence from which the jury may have inferred as a natural and usual consequence that plaintiff suffered in the respects alleged, and there was therefore no error in refusing the charges on this subject requested by defendant. 4 Mich. Dig. § 45, p. 639.
Charges refused to defendant and made the subject of assignments of error 14 and 16 were due to be refused for the reason that they make plaintiff's right to recover to depend upon proof of malice. In count A, upon which alone the cause went to the jury, there was no allegation of malice, the gist of the count being its allegation of plaintiff's wrongful, that is, unlawful, detention. In such case plaintiff, his count being supported by the proof, was entitled to recover his actual damages, even though there was no malice Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am. St. Rep. 32. The same conclusion obtains in respect of the charge set out in assignment 18.
The charges stated in assignments 19 and 20 would have been apt in a case of malicious prosecution; but count A, already referred to, charged false imprisonment, a different case. Standard Oil Co. v. Davis, supra.
Charge 22 — that is, the charge stated in assignment of error 22 — was confused and self-contradictory. It proceeds also upon the theory that in order to recover plaintiff must discharge the burden of proving that defendant's agent, Benton, directed or requested the chief of police to arrest plaintiff, whereas this court in Standard Oil Co. v. Davis, supra, said that "a person may be the responsible instigator of an arrest without expressly commanding, requesting, or directing it." Plaintiff's theory of the case, i. e., that defendant's agent, acting within the *Page 496 line and scope of his authority, had instigated the arrest, had support in well-defined tendencies of the evidence. Defendant complains of the admission of plaintiff's evidence on this point. Our judgment is that it was competent, relevant, and material to show that defendant's agent, Benton, was present at the time and place of plaintiff's arrest, that, after Benton and the police officer talked together — the witness did not hear what was said — the officer called plaintiff over and said, "We have decided to put you under bond," and that Benton nodded his head. It is objected that the last phrase of plaintiff's testimony, as stated above, was volunteered by the witness. But the answer, made in response to a question by plaintiff, was relevant and material to the issues in the cause, and, that being the case, defendant's objection was properly overruled.
The pleadings in this case limited the issues as we indicated in the beginning by our citation of Rhodes v. McWilson. Under the pleadings and the evidence the general affirmative charge requested by defendant was properly refused, as we have said. The motion for a new trial leaves to be considered only defendant's contention that the damages awarded were excessive — so excessive as to indicate bias, prejudice, or passion on the part of the jury. Assuming that defendant procured the arrest of plaintiff — a conclusion there was evidence to sustain — much might be said in favor of the proposition that defendant was abundantly justified in the course it took. But two juries have found the issues for plaintiff and have awarded exemplary damages. Upon consideration of all the circumstances the court here has concluded that the award resulted, not from bias, prejudice, or passion, but from a mistaken estimate by the jury of the proprieties of the case, and has decided, therefore, that the damages be reduced to a reasonable maximum, failing the acceptance of which by plaintiff, a reversal will be ordered. This conclusion is reached upon consideration of the strong case for justification — not pleaded, however, as we have noted, but admissible to rebut malice — and the fact that plaintiff was never taken into actual custody, though he did stand trial in the recorder's court of Bessemer. The court is of opinion that the sum of $1,000 is allowable under the circumstances. To this sum, if accepted, interest is to be added from the date of the judgment in the trial court, but without the penalty of 10 per cent as in the recent cases of Montgomery L. W. P. Co. v. Thombs, 204 Ala. 678, 87 So. 205, and U.S. Fidelity Guaranty Co. v. Millonas, 206 Ala. 147,89 So. 732.
The judgment will accordingly be reversed, and the cause remanded, unless the plaintiff within 30 days shall remit damages in excess of $1,000; but, upon such remittitur being made and entered, the judgment as so reduced will be affirmed.
Reversed conditionally.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.
1 88 So. 585.
2 Ante, p. 12.