dissenting.
I concur in all of tlie views so clearly and forcibly expressed by Judge Powell in his opinion for the majority of the court, except as to that portion embraced in the. tenth division of the opinion and tlie tenth headnote. After a most careful consideration of the evidence and the charge of the learned trial judge, referred to and discussed by Judge Powell, I do not think that the charge relating to the damages on the first count contained a material error which in any manner misled or confused the jury; nor do I think that this court can say, under the facts, that the amount of the verdict found on this count was excessive; and I therefore can not concur in the conclusion of the majority of the court that the verdict rendered *688on this first count in behalf of the plaintiff should be written off under penalty of another trial.
The petition contained three counts. The first count claimed damages for the illegal arrest. The second count claimed damages resulting from false imprisonment following this illegal arrest; and the third count claimed damages for the malicious prosecution following the illegal arrest and false imprisonment; all türee of the counts laying the amount of the damages at the arbitrary sum of $10,000. The damages resulting to the plaintiff from each one of the wrongful acts complained of, to wit, the illegal arrest, the false imprisonment, and the malicious prosecution, seem to me to be substantially the same, although there may have been some greater elaboration of these grounds in the second and third counts than in the first count. But after all, considered from a reasonable and practical viewpoint, it seems to me that the character and extent of the damages claimed for each one of the three wrongful acts complained of do not substantially vary; and it is altogether reasonable to conclude that the jury, in considering the question of damages, did not make any very critical analysis of each character of the damages flowing from each separate wrongful act, or make concrete application to each count, but in all probability' considered all the wrongs complained of, as one continuing tort, and endeavored by the verdict to compensate the plaintiff for all the wrongs for which they found the defendant was responsible.
It is insisted that the former ruling of the superior court, acquiesced in by both parties, that the proper legal procedure was to separate the items of damages into counts, was binding upon the court and the jury, and that the jury were therefore compelled to consider each question separately, and to award damages appropriate to each separate count, and not give a lump'sum for all the acts complained of. This may be the sound legal view, but I have no idea that the jury, in fixing the amount of damages, were very greatly influenced by this technical view of legal pleading.
It is said by Judge Powell that the judge committed an error which may have misled the jury, in that he instructed them, on the first count, that they might consider certain elements of damages not claimed as grounds of damages in that count, but which were contained in the second and third counts, and that this instruction may have led the jury to give too large a verdict on the first count *689for the unlawful arrest. The judge charged, as follows on the question of damages: “Now, she sets up, gentlemen, she suffered damages on each of these counts to which I have called your attention, for humiliation and for her wounded feelings, for her suffering mental and physical, for her disgrace amongst her friends and people who knew her, and humiliation, and that it affected her nervous system so that she suffered a nervous shock for two weeks or more, and asks to recover damages, laying her damages on each one of the counts at $10,000. Well, gentlemen, the same rule or measure of damage would apply on each one of .these counts, and it is left to the enlightened consciences of impartial jurors to say what the amount of damages would be, if she recovers in the case. It would be your duty to look into the character of the wrong done her, if she was wronged, in each count; what effect it had as to causing her suffering; what effect it had as to causing her humiliation; what its tendency was as to disgracing her before the public, amongst her friends; and, desiring to be fair,” etc. T think the learned trial judge, in thus summing up all the grounds of damages which the jury were authorized to consider, was really making a summary of all the damages claimed in the three counts, and did not intend to make a distinct and separate statement of the grounds of damages set out in each of the separate counts. It would probably have been more accurate for him to have separated the items of damages claimed on each count, but I can not bring my mind to believe that because he summed up all the damages, he thereby confused the issues submitted to the jury or misled them into giving too large an amount on the first count. Of course, the statement made by the learned’ judge that the measure of damages on each count was the same was correct, the measure being the enlightened conscience of impartial jurors. It must be conceded that the plaintiff was entitled t'o some damages, under the verdict on the first count, for the illegal arrest. This first count sets up that by the illegal arrest the plaintiff was “greatly humiliated and damaged in her feelings and reputation,” but mentions no other element of damages, except punitive damages. In considering the evidence applicable to this count and the resulting damage from the wrong-complained of, the allegations permit a very broad scope to the jury. IIow much was she entitled to for the illegal arrest? She says it greatly humiliated her, and damaged her in her feelings and repu*690tation. If she was entitled to any damages for the false imprisonment, she certainly was entitled to damages for the illegal arrest. Not only could the jury, under this first count, give her damages as compensation for wounded feelings and humiliation, but they were also authorized on this count to give punitive damages. I can not bring my mind to the conclusion that the $3,500 found on this count, under the allegations and the proof (even when considered in connection with the allegations of this count only), was excessive.
I do not concur in the statement in the opinion that the verdict on the third count necessarily found that while the arrest was illegal, it was not malicious. There was contention — in fact one of the principal defenses relied on as to the third count was — that the prosecution of the plaintiff was not by authority of the. defendant, but that the case was prosecuted without its consent and without its authority; and the judge very properly instructed the jury, as to this question, that before they could find a verdict for the plaintiff on this count, they must find, from a preponderance of the evidence, that the prosecution was without probable cause, was malicious, and was by authority of the defendant. It is not beyond the evidence to conclude that the jury may have thought that the prosecution was both malicious and without probable cause, yet that the defendant was not responsible for the prosecution and was not liable on this count. The decision in the Fleming case, supra, cited by Judge Powell, and by Judge Pussell in his specially concurring opinion, I think does not furnish legitimate ground for holding that the verdict on the first count in this, case, under the allegations of damages in that count, was in any sense excessive. I might dispose of the point by stating that the Justice who wrote the opinion in that case was simply expressing his personal view on the amount of the verdict. He did not speak for the court, .for that question was not an issue in the case. The facts in that case did not show that the plaintiff was actually arrested, but showed that his arrest was constructive, and-was attended with no element whatever of aggravation, either in the act Or the intention, and it may have been true that under the facts of that case $1,000 was excessive. In the present case there was an actual arrest without a warrant. The verdict found that there was great humiliation and damage to the feelings of the plaintiff. Judge Powell justly says *691that there were certain facts of aggravation, which the jury might well have considered on the question of punitive damages, to wit, the refusal of the defendant or its agent to permit the plaintiff to go to her home, where she had three small female children, to make necessary provision for their protection while she was under arrest and away from them. To sum the whole matter up, and without extending this discussion, which is necessarily without profit, save as a matter of personal satisfaction to the Judge who renders the dissent, I do not think the charge complained of was so confusing and misleading as to require the direction that the plaintiff write off the amount of the verdict on this count or take the risk of total loss of compensation for the wrongs done her; and I certainly think that under the facts of the case we can not say that the verdict was excessive under the first count, in view of the very broad latitude which the law gives to the jury in determining the amount of damages of this character.