On Rehearing.
The opinion of the court was delivered by
Spencér, J.This case has been twice tried by jury in the lower court. On the first trial the jury gave a verdict for plaintiff of ten thousand ■dollars. On the second, a verdict for defendant, Judgment hairing been entered accordingly, plaintiff prosecutes this appeal. The ease is now before us .on a rehearing, granted by our predecessors to the defendant, who was, by the decree, of this court, condensed to pay plaintiff five thousand dollars damages. ....
On the first hearing in this court,, the opinion was unanimous that the arrest of plaintiff, on the seventeenth of September, 1873, was procured *175"by defendant without probable cause, and therefore, by presumption, maliciously.
We have given the facts of this case very careful consideration, and are constrained to the same conclusion as our predecessors, that the •arrest on the seventeenth of September, 1873, was without probable cause, as shown by the defendant’s own statements as a witness. He says “ that he was not threatened by words by the plaintiff, Mrs. Hardy, that day, September seventeenth; she did not use any threatening language that day while he was talking with' his friends on G-ravier street; she used no threatening- language before Judge Hunt spoke to her, and no insulting language; she used no language at all. That it was her rude and brusque manner in presenting- herself to him and her angry looks -that constituted the breach of the peace complained of in his affidavit; that the threatening and insulting language he complained of in the affidavit was such as this: “Are you not going to do something for me? When are you going to do something for me?” She did not threaten him personally that day in words, or abuse him, personally that day, beyond the usual running conversation she had with him while walking with him up St. Charles street. * * * She was not talking very loud, etc.
' • This statement of the facts by the defendant himself is certainly inconsistent with his affidavit that she “ did then and there, while affiant was conversing with friends, rudely present herself to him, and address him .in threatening and insulting language.”
If this affidavit was made under the city ordinance declaring it “ unlawful to abuse, provoke, or disturb any person * * * in the streets or in any public place” (which seems doubtful), we do not think the facts stated amount to the offenses of “ abuse, provocation, or disturbance ” contemplated by that ordinance.
We do not wish to be understood as indorsing the proposition that a ■woman of doubtful character has the right to shadow, and, as it were, dog a man about the streets, for the purpose of annoying him or extorting money from him. We have no doubt that defendant (not without .-fault himself) had been on many occasions greatly annoyed — perhaps abused, provoked, and disturbed ” — by the plaintiff. But on this particular occasion we do not find in her conduct such abuse, provocation, or. disturbance-as would-excuse the defendant In having her‘arrested and imprisoned. We think he acted unwarrantably and hastily, and must pay the plaintiff such damages as will reasonably compensate her -.for the injury and wrong done to her person, her feelings, and reputation.
In the oral argument -the counsel suggested that it was desirable that the court should now finally dispose of this case, without remanding it *176lor another trial by jury. Wo concur in. these suggestions, for this record does not re-assure one of the advantages of jury trials.
We are not inclined to award the plaintiff vindictive damages. The proofs in this record satisfy us that, though not excusable for arresting the plaintiff on the seventeenth of September, the defendant had previously suffered great annoyance from her. That she had not always, even on the streets, conducted herself towai’d him in a very ladylike manner. She was a mature woman and widow when her acquaintance with him began, and has no very gi'eat claim to sympathy for the results, certainly not much more than he has. Both, perhaps, deserve the pity of the charitable, for “ to err is human.”
We do not think that plaintiff is entitled to such damages as would be awax’ded to a pure and unblemished woman; character, reputation, ought to be considered, as wpll as the actual physical and mental suffering of the injui'ed party. Considering a-11 the facts, condition of the parties, the length of imprisonment, its effect upon plaintiff’s health, the mental suffering resulting from the incarceration, her standing in the community, we think that á judgixient for fifteen hundred dolíais is sufficient compensation to her and ample punishmont of the defendant.
It is therefore ordered, adjudged, and decreed that the verdict of the jury and the judgment of the lower court be avoided and reversed; and it is now ordered and decreed that the judgment heretofore rendered by this court bo amended so as to reduce the amount allowed the plaintiff to fifteen hundred dollars, and that defendant pay costs of both courts.