Ginsberg v. Murphy , 22 Ala. App. 438 ( 1928 )

This was an action for damages for malicious prosecution brought by appellee against appellant. The complaint was in Code form. The evidence well-nigh, if not quite, made a case where the appellee was entitled to have given at his request the general affirmative charge in his favor. The jury awarded him a substantial sum as damages.

In his oral charge the trial judge used this language:

"And after you have considered all the testimony, if you reach the conclusion that he [referring to appellee] was a man that did not possess a good character, it should not have any weight whatever on whether or not you find a verdict in his favor, or the amount of that verdict."

To this latter clause, "or the amount of that verdict," an exception was duly reserved.

We think the exception well taken. It is true that the bad character or reputation of plaintiffs in actions of this nature cannot be considered for the purpose of preventing a recovery by them. Central Iron Coal Co. v. Wright, 20 Ala. App. 82,101 So. 815. But the bad reputation of such an one is permissible (to be considered) on the question of damages. Gulsby v. L. N. R. R. Co., 167 Ala. 122, 52 So. 392. This seems to be the intent of the holding of the Supreme Court in the case just cited. Aside from this, we would say that it stood to reason that the proposition of whether or not one was of good or bad character or reputation bore directly upon the measure of damages to which he would be entitled in actions of this kind. The portion of the oral charge mentioned, to which exception was reserved, was not abstract, and its giving was both erroneous and prejudicial. Other questions raised are not important, and will not likely arise upon another trial.

For the error pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.