Ross v. Rickert

ST. PAUL, J. This is an action for damages for alleged false arrest and malicious prosecution. The answer sets up the general issue. Tile only question of law presented is as to the effect to be given to certain testimony; otherwise only questions of fact arise. In actions of this nature where the answer is merely a general denial, evidence or probable cause and want of malice is not admissible to show justification, but may be introduced in mitigation of damages. Hitchcock vs. North, 5 Rob. 328; Caspar vs. Brosdame, 46 An. 38. During the course of the trial, plaintiff called to the witness stand one of the defendants and the testimony given by this witness tended te show probable'cause and want of malice. It is now contended that plaintiff, having himself introduced evidence to which he might have objected, must abide by the effect thereof, whatever it may be. As á general proposition this is true, Lafon vs. Gravier, 1 N. S. 243; but it is well settled that evidence admissible under the pleadings cannot serve to enlarge them, even though received without objection. Rogers vs. Southern Fiber Co., 119 La. 715; 112 La. 127; 31 An. 864. Nor does it affect the case that the evidence was introduced by the party against whom it is sought to -use it. ’The presumption is that he offered it under the pleadings, not beyond them. Jones vs. Read, 1 An. 200; Mullen vs. Follain, 12 An. 838. [34] May 30, 1910. Under the pleadings therefore, this evidence cannot avail defendant as a justification, but must be considered only in mitigation of damages. On the merits, the evidence is conflicting, but the district judge, who saw and heard the witness, and gave judgment for defendant, evidently believed the testimony of defendant and found probable cause for the arrest and subsequent prosecution, and want of malice on the part of defendants. This finding of fact appears to us correct. Under the record, plaintiff must have a judgment, but we think the amount thereof should be merely nominal. He has shown no actual damages (not even attorney’s fees) land his character and feelings have been injured to an extent wholly inappreciable. It is, therefore, ordered that the judgment appealed from be reversed, and it is now ordered that there be judgment in favor of the plaintiff, Edward Ross, and against the defendants, Prank Rickert and Fred. W. Riclcert in solido for the sum of one dollar and costs of both courts. Dufour, J., dissents and files an opinion.