Williams v. Hayes

77 So. 915, 16 Ala. App. 321, 1918 Ala. App. LEXIS 3

Opinion

BROWN, P. J.

The first count of the complaint is in trespass' for false imprisonment, and the second in case for malicious prosecution. The case was tried in the court below on the assumption that the process under which plaintiff was arrested and tried was void, under a decision of the Supreme Court, not cited by either of the parties in brief, and we will treat the case on the same theory.

'The plaintiff recovered nominal damages, and from the judgment on the verdict of the jury appeals.

[1J During the progress of the trial, the plaintiff offered evidence to show that by reason of his arrest and prosecution he incurred expense in the employment of counsel to protect him against the unlawful arrest and malicious prosecution, and the court sustained an objection interposed by the defendant to this evidence, and correctly so, because such damages were not specially claimed in the complaint.

[2] As soon as this ruling was announced, the plaintiff asked leave of court to amend the complaint so as to specially claim such damages, and the court declined to allow the amendment, and in this ruling committed reversible error. Fields v. Karter, 121 Ala. 329, 25 South. 800; Springfield Fire Ins. Co. v. De Jarnett, 111 Ala. 248, 19 South. 995; Boshell v. Cunningham, 200 Ala. 579, 76 South. 937.

Reversed and remanded.