#### Curls, Appellee, *v.*Lenox Garage Co., Appellant.

(No. 5918

Decided March 17, 1941.)

*286
      *Mr. M. Froome Barbour,*for appellee.

*Mr. Charles P. Taft,*for appellant.

Hamilton, J.

This law suit, heard on appeal on questions of law, is an action in damages for malicious prosecution, brought by the plaintiff, appellee herein, against the defendant, appellant herein.

It appears that the plaintiff was driving the automobile of a friend when, near the garage of the defendant, a defective tire developed. Plaintiff went to the garage for relief and an employee of the defendant garage company took the company’s power jack and went to the automobile, which was about a square and a half away. The employee .of the garage placed the power jack under the car, raised the car, and removed the tire. He took the tire to the garage for repair, but did not return. After waiting a long time, plaintiff went to the garage where he found that the employee had left for the evening, leaving a card on the tire which showed a charge of fifty cents for repairs. Plaintiff took the tire to the car and replaced it himself. After taking the jack from under the car and placing it in the tonneau of the automobile, he drove to the place where he was to pick up the owner of the car, and together they drove home with the jack still in the car.

After some forty-eight hours, the defendant sought the jack. Defendant’s employee went to the place of employment of the plaintiff and learned that he had moved to an address unknown to the employer. Defendant thereupon procured a warrant against plaintiff for larceny of the jack.

After returning the jack to the defendant, the plaintiff went to the place of employment where he had worked for many years. There he learned that a warrant, charging him with larceny, had been issued for his arrest, and was in the hands of officers who were *287seeking him. He went immediately to the defendant’s garage, and, after a conversation with its manager, was informed that the warrant was ont for his arrest because of the failure to return the jack. After some discussion, plaintiff was informed that the prosecution would be dropped only upon the payment of five dollars, as defendant had been put to some expense and trouble. The plaintiff was greatly concerned about losing his job, which he feared would be the result of the prosecution, and, therefore, paid the five dollars. Thereupon the defendant notified the authorities that it desired to drop the prosecution.

In the meantime, plaintiff had been arrested on the warrant, and was compelled to appear in court. Defendant company was unable to stop the prosecution, and the plaintiff was required to stand trial. Defendant did not appear to prosecute, but urged that the matter be dropped. The court acquitted the plaintiff after calling him to the stand and interrogating him with regard to the transaction.

The plaintiff, in order to save his job, had told his employer some things which were not true. Thereupon, the employer of the plaintiff discharged him for reasons growing out of the arrest. Some time elapsed before he secured new employment.

These are in substance the controlling facts.

Thereupon, plaintiff instituted this action and upon trial of the case secured a verdict for $2,500. Judgment was entered on the verdict, and from that judgment this appeal was taken by defendant.

Several errors are assigned, but two of which will be commented upon.

The first question suggested is whether there was probable cause to believe that the plaintiff was guilty of the crime charged. This is not a case of false arrest. Probable cause would have a bearing on the question of malice and was a question for the jury under proper instructions.

*288The jury might well believe, under the evidence, that there was insufficient investigation and that the arrest was to accomplish a private end, not connected with the public good. If the jury so believed, it would be sufficient to indicate malice in the prosecution and, therefore, punitive damages would be recoverable.

The next question is the claim that the payment of the five dollars was a settlement and compromise and was, therefore, a complete defense to the action. Defendant cites 53 L. R. A., 715, and notes thereunder, in support of this claim. There were several circumstances indicated by the evidence that the payment of the five dollars by the plaintiff was not a voluntary payment, but was made under stress or fear. Undoubtedly, if there was a payment, effecting complete settlement and compromise in the case, the plaintiff would be barred from proceeding further. The authorities amply support that proposition. But it must be borne in mind that the prosecution did not stop, insofar as injury and damage to the plaintiff were concerned, and the matter proceeded to trial which resulted in the acquittal of Curls in the larceny case. What plaintiff sought by the payment of the five dollars was to stop everything connected with the arrest so that he would not lose his job with his employer. The payment neither stopped the prosecution, nor saved plaintiff from being discharged by his employer.

The action of the defendant in notifying the officers of the court that it did not desire to prosecute the case would have a bearing on an award of punitive damages.

It was a question for the jury whether or not the payment of the five dollars was a full compromise and settlement and voluntarily made as such.

Some objection is made to that part of the charge of the court defining proximate cause in its relation to plaintiff’s discharge by his employer.

*289It is argued that plaintiff’s discharge and loss of wages was due to false statements of the plaintiff-employee concerning the transaction, and not because of the prosecution, and, therefore, there was an intervening cause of his discharge which was the proximate cause of plaintiff’s loss of wages. The court gave the usual definition of proximate cause as approved in negligence cases. This was admittedly a correct proposition of law, although of doubtful application in this case.

The court in the general charge properly defined probable causé. It gave defendant’s special charge as follows:

“If you find by a preponderance of the evidence that the plaintiff made false statements to his employer about the circumstances leading to the swearing out of the warrant, and if you find further that the proximate cause of his discharge was those false statements and not the swearing out of the warrants or his arrest, or his appearance and dismissal in police court, then, if you find a verdict for the plaintiff, you may not include any damages for loss of wages.”

A consideration of the assignments of error leads us to the conclusion that no prejudicial error intervened except as to the amount of the judgment.

The evidence discloses that the plaintiff suffered damages to the extent of $782 by way of loss of wages. He undoubtedly suffered humiliation and mental anguish, but there is no evidence that he suffered any damage to his character or reputation. Attorney’s fees may be considered in a case of this kind. It will be noted that the defendant made' some efforts to stop the prosecution. This feature of the case must be considered on the question of malice justifying an award of punitive damages.

We are of opinion that $500 would be a sufficient award for humiliation and mental anguish and as punitive damages against the defendant. This sum *290added to $782 actual damages amounts to the sum of $1,282. We find the verdict excessive, but not given under passion and prejudice.

If plaintiff, appellee, will consent to waive all in excess of $1,282, the judgment will be affirmed; otherwise, it will be reversed and a new trial granted on the ground that the judgment is against the weight of the evidence as to the amount thereof.

*Judgment accordingly.*

Matthews, P. J., and Ross, J., concur.