Dare v. Harper

Kirby, J., (after stating the facts). The foregoing ■ instructions are complained of, and we agree with the contention that the court erred in giving said instruction numbered eight. It in effect told the jury that if the defendant caused the arrest of the plaintiff, as charged in the complaint, for the purpose of extorting money from him, and not for the purpose of honestly prosecuting the suit for the offense charged, they should find for the plaintiff; or if they found from the testimony that he caused the law to be set in motion against the plaintiff to serve the defendant’s own persona1 purpose, and not for an honest enforcement of the criminal law, and upon probable cause, they should find for the plaintiff. This instruction is contradictory in its terms and of other instructions, the first half of it being a complete instruction within itself and not a correct declaration of the law, and the second so carelessly drawn as to be confusing, if not misleading. The first part of it tells the jury that if the arrest was caused for the purpose of extorting money from the plaintiff, in effect maliciously, they should find against the defendant, without regard to whether he was guilty of the offense charged, or whether there was probable cause to believe him so guilty or not. This is not the law. In the case of Kansas & Texas Coal Co. v. Galloway, 71 Ark. 351, this court said: “In malicious prosecutions it devolves upon the plaintiff to show affirmatively both malice and a want of probable cause upon the part of the defendant in instituting the prosecution complained of.” It is true, in the last part of the instruction, the words, “and upon probable cause,” appear, but they are entirely disconnected from the first part of the instruction, which, at its conclusion tells the jury they will find for the plaintiff, in effect, if they shall find the prosecution was instituted for other than an honest purpose to enforce the criminal law. Other instructions correctly declare the law on this point, but are in conflict, and do not remedy the error and render it harmless. Helena Hardwood Lumber Co. v. Maynard, 99 Ark. 377. Complaint is made of instruction numbered six, it being claimed that it allows the jxxry to assess damages as compensation for loss of time and other damages actually suffered, and also punitive or exemplary damages if the arrest was caused to be made wilfully and maliciously, and might have misled the jury to believe that plaintiff could recover compensatory damages without proving that the prosecution which was instituted was malicious and without probable cause. While there is some ground for this contention, we would not reverse the case for the giving of this instruction, there being no specific objection made to it on that account, if the other instructions had correctly declared the law. Although instruction numbered four is not complained of here, since the case must be tried again, we deem it well to say that said instruction is incorrect, and the giving of one of like kind was recently held to be reversible error in L.B. Price Mercantile Co. v. Cuilla, 100 Ark. 316. We do not think it necessary to discuss the conduct of appellee’s attorney in reading from a complaint not in evidence in this case, the name of another attorney who appeared as counsel for this appellant therein, than the one he claimed to have consulted before the institution of the prosecution, since it will probably not occur again upon the next trial. For the errors indicated, the judgment is reversed, and the cause remanded for a new trial.