Appellee's argument on application for rehearing is based upon two contentions: (1) That the cases of Oates v. McGlaun, Rhodes v. McWilson, and Fowlkes v. Lewis, cited in the opinion as authority for reversal of the trial court for the refusal to give the two charges there referred to, are wrong in principle, and should be overruled; and (2) that, in any event those charges were abstract in this case, and were for that reason properly refused.
A reconsideration of the principles underlying those cases convinces us that they are correct. It is of course to be conceded that parties have no right in general to have a jury instructed upon causes of action not involved in the case on trial. But where the case on trial has some element or elements in common with some other cause of action, so that confusion may arise in the minds of the jury as to the issues involved, an eliminative instruction may be insisted upon. That is evidently the theory upon which Oates v. McGlaun, supra, was ruled.
In the instant case, plaintiff himself testified, over defendant's seasonable objection that it was not a recoverable element of damage, that the arrest complained of resulted in a criminal prosecution, and that he "had to appear in open court" to defend himself against the charge upon which he was arrested. In that state of the evidence, without the instruction requested against any recovery as for a malicious prosecution, the jury might have found that the resulting prosecution was malicious, and that defendant was responsible for it and for the added humiliation and injury it entailed, and so have increased the damages awarded. The instruction was certainly not abstract.
As to the other instruction on the effect of acquittal of the charge made against plaintiff by defendant, it is true that there was no direct testimony that plaintiff was acquitted. Yet no one can read plaintiff's testimony without drawing the assured inference that he had been acquitted. That was our own conclusion, and we may infer that it was the jury's also. The charge in question cannot be regarded as abstract.
Application overruled.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur. *Page 569