
    Drummond et al. v. Henderson.
    
      Action again justice of peace — To recover damages for commitment to jail without plea of guilty — Grotmds of injury to reputation of plaintiff — Defendant may prove bad repute of plaintiff, when.
    
    In an action against a justice of the peace to recover damages for committing the plaintiff to jail without a plea of guilty, thus .exceeding his jurisdiction, injury to reputation being specially alleged as one of the grounds of recovery, it is competent for the defendant to prove that the plaintiff was at the time the cause of action arose of bad repute for honesty, the effect of the evidence being limited to the purpose of defeating or , reducing a recovery on that particular ground.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Greene county.
    The defendant in error brought suit in the court of common pleas against Drummond, who is a justice of the peace and the sureties upon his official bond. The plaintiff alleged that Drummond maliciously procured, one Garrison to file an affidavit charging that the plaintiff had, in violation of law, placed the carcasses of dead animals upon a public highway and permitted them to remain there for several hours contrary to the statute, and issued a warrant thereon; and that upon the plaintiff’s being brought before him under arrest, and upon his refusal to enter a plea of guilty, the magistrate, ex-seeding Ms jurisdiction, adjudged him to pay a fine of ten dollars and the costs of prosecution, and ordered him to stand committed to the jail of the county until he should pay said fine and costs, and that in consequence of his inability to make such payment he was under such order confined in the jail of the county. He alleged general and special damages. His allegations of special damages included the following: That he (the plaintiff) “has been greatly damaged in his good name and reputation where he lives by reason of said imprisonment.”
    The answer alleged that the plaintiff upon his arraignment upon the charge made in the affidavit had entered a plea of guilty thereto, and that if the justice had exceeded his jurisdiction it was because of an error of judgment. It also alleged with particularity the truth of the charge contained in the affidavit.
    Upon the trial the court of common pleas, against the objection of the plaintiff, admitted evidence offered by the defendants to show that before and at the time of the arrest the plaintiff’s reputation for honesty -was bad. The effect of this evidence was limited by the following instruction given to the jury:
    “Now if the jury should find from the evidence that no material damages accrued to plaintiff’s reputation on account of such imprisonment, yet from that fact, if it be such, the jury are not to infer that he has not suffered damages on the other two grounds mentioned, and although the jury may not be disposed to give him damages on account of a blemished reputation, by reason of the false imprisonment claimed in the petition and amended petition, yet he should be awarded such damages on the other two grounds as the jury may think him entitled to, from the evidence in the case.”
    A verdict was returned in favor of the plaintiff assessing his damages at one dollar. Plaintiff filed a motion for a new trial upon numerous grounds, in-eluding the admission of the evidence respecting his reputation. The motion was overruled and judgment was entered upon the verdict. The plaintiff then filed a petition in error in the circuit court, where the judgment was reversed because of the admission of said evidence.
    
      HoYace L. Smith, for plaintiffs in error.
    
      J. A. Cook, for defendant in error.
   Shauck, O. J.

The conclusion of the circuit court is said to be justified by Comer v. Knowles, 17 Kas., 436. With respect to that case it is to be observed that it is not decisive of anything except the particular case, since the judgment of the trial court was affirmed because of an equal division of the judges of the supreme court; and, further, that the question presented here was not involved in that case nor considered by the court. The two questions there considered were: First, may the defendant in an action of this character, for the purpose of mitigating damages, introduce evidence to show that in committing the act complained of he acted in good faith and without malice? Second, may the plaintiff in an action of this character recover for an injury to reputation without pleading facts showing-pecuniary loss in consequence of injury to his reputation?

If injury to the reputation of the defendant in error here would not otherwise have been a ground of recovery, it became a ground by reason of the averments of his petition in that regard. In the absence of evidence upon the subject the jury would have been left to the legal presumption that his reputation was as good as that of men in general, and their verdict would, in that regard, have awarded him such damages as a like imprisonment would have made proper in the case of one of good reputation. It would seem reasonable that whatever is the subject of an injury for which, a recovery in damages is sought should be the subject of inquiry in the ascertainment of such damages. The evidence admitted by the trial court has been held competent in many similar cases. Bacon v. Towne et al., 4 Cush., 217; Fitzgibbon v. Brown, 43 Me., 189; Gregory v. Chambers, 78 Mo., 294. It will not follow that a plaintiff, because his reputation is bad, will be denied a recovery'for all the damages which he really sustained in consequence of a trespass of this nature. The legitimate effect of such evidence is to deny him a recovery on account of an injury which he has specially alleged but did not sustain. The effect of the evidence was properly and discreetly limited by the instruction given by the trial judge.

Judgment of the circuit court re-v&rsed and that of the common pleas affirmed.  