This was an action by appellee against appellant to recover damages for malicious prosecution. The case was ultimately tried on counts 1 and 3. There are no special pleas to these counts. Each declares upon a separate prosecution. This is the second appeal in this case; the first being- reported in 167 Ala. 146, 52 South. 596. A number of the questions presented for review on this, the second appeal, were decided in the former; and as to these we see no reason to depart from our ruling heretofore announced. .
The first insistence is that the plaintiff was guilty of enticing away employees of the defendant. This was the offense for which he was prosecuted; or at least the evidence showed conclusively that there was probable cause for believing him to be guilty of such offense, and that therefore the defendant should not he held liable to a civil suit for instituting this prosecution against the plaintiff.
*250We cannot agree with, counsel in this contention. It was ruled on the former appeal in this case — if not expressly, by necessary implication^that under the evidence this was a question of fact for the jury, and that the trial court properly submitted it to the jury, under correct instructions. And there is no such difference between the evidence adduced on the first trial and that brought out on the second as to warrant the court’s withholding this question from the-jury.
The plaintiff, when arrested on these charges, waived a preliminary trial and gave bond to appear and answer any charge that might be preferred by the grand jury. The grand jury failed-to indict the plaintiff, in either case, for the offense charged, but did return an indictment against him for carrying on the business of emigrant agent without a license — which of course, was an offense separate and distinct from that of which he was charged.
It is next insisted that the prosecution of the plaintiff was instituted by the agents of the defendant, on the advice of reputable practicing attorneys, given on a full and fair statement of all the facts known to the affiant, or which by proper means could have been ascertained.
It is sufficient to say, as to this insistence, that whether or not that was done in the manner, to the extent,' and with the purpose, to make it a complete defense to the action, was a question of fact for the jury, and not one of law for the court; and that the court did not err in submitting these questions to the jury under proper instructions, which the trial court seems to have given.
The mere fact that a person desiring to institute a prosecution consults a reputable attorney before so doing, and that such attorney advises the prosecution, does *251not of itself amount to a complete defense to an action for maliciously instituting such prosecution. All this might be done, and yet the prosecution be maliciously instituted.
Whether the affiant made a full and fair statement of the facts to the attorney, whether he used proper diligence in order to ascertain the facts, and whether he consulted the attorney for the purpose of obtaining the advice of such attorney and acting upon it rather than upon his own judgment, or for other motives, were in this case (and are usually) questions of fact for the determination of the jury.
All the evidence in this record has been carefully read and considered, and we have reached the conclusion, not only that the trial court correctly submitted these questions of fact to the jury, but also that the action of the court was proper, in declining to award a new trial on account of insufficiency of the evidence, or on the ground that the jury acted contrary to the instructions of the court upon this question.
We do not think that the court erred in allowing secondary proof as to the contents of the affidavit and warrant. The case was reversed on the former appeal, and one of the grounds of the reversal was the admissibility of this secondary evidence.
The trial court evidently attempted to comply with the rule announced by this court on the former appeal, as to the admission of such evidence. The secondary proof was made by the officer who issued the warrant, and before whom the affidavit was taken, and he, of course, was the proper custodian of it. He testified that it was lost, and that he had made unavailing search for it; that the papers had gone up to the grand jury; and that the lost papers were not those of which plaintiff was custodian, but were quasi records of the proceedings in the justice court.
*252It is insisted in the argument by. the appellant that the secondary evidence of the witness, as to the contents of the affidavit and warrant, was a mere opinion or conclusion. This was not one of the grounds of objection assigned to the introduction of such proof, nor of the motion to exclude, and that question cannot be.raised, for the first time, on appeal. The trial court evidently did not have that question presented to it for decision.
It was ruled on the former appeal that the fact that Sanders, one of the defendant’s agents, was appointed a deputy sheriff at the instance of the defendant, was a material inquiry. We can see no reason to recede from what we then said upon that question. The facts that the defendant’s agent was thus, as its request, appointed to be a deputy sheriff, and that this agent, as such deputy, arrested the plaintiff under the warrant, the basis of this prosecution, were certainly a material inquiry upon this trial. Hence there was no error in allowing proof to be made as to such facts. As was said in this court in the former opinion, if he acted in the matter solely as a deputy sheriff and not as the agent of the defendant, the defendant could not be held liable; but, on the evidence in this case, it was certainly a question for the jury to sajr in what capacity he acted in instituting the prosecution against the plaintiff.
We are not prepared to say that the trial court erred in declining to grant the defendant’s motion for a new trial. While the verdict and judgment are larger than usual in such cases, we cannot say that the award was the result of the bias, prejudice, or other improper motive or influence, on the part of the jury. There was evidence sufficient to warrant punitive damages. Each count declared upon a separate prosecution, which was alleged to be malicious; and this we have held to be also a question for the jury. If they believed from the evi*253clence that the plaintiff: had made out his case and was entitled to recover, and that the prosecution was malicious, wanton, and without probable cause, they were justified in awarding punitive damages. The amount of damages, in such cases, is a question for the jury, under proper instructions by the court.
While there may be instances in which the trial court or an appellate court could set aside a verdict because so excessive as to show that the jury were influenced by improper motives or agencies, rather than by the evidence, in fixing- the amount, we think that this is not such a case. The verdict as originally rendered ivas for $6,000; and, upon the motion for a new trial on the ground that the verdict was excessive, the trial court, which had heard all the evidence and had every opportunity to observe the witnesses, announced that a new trial would he granted, for this reason, unless the plaintiff remitted $2,000 of such verdict; whereupon the plaintiff in open court remitted $2,000 of the verdict, and the court then overruled the motion for a new trial and rendered a verdict for $4,000.
After a careful examination of all the evidence in this case, and due consideration of the fact that the suit was for two malicious prosecutions, we are not willing to put the trial court in error for declining to award a new trial, after the plaintiff had remitted $2,000 of the damages as fixed by the verdict of the jury.
Finding no error, the judgment of the trial court must be affirmed.
Affirmed.
Simpson, Anderson, and McClellan, JJ., concur.