CULLEN, Commissioner. In an action for malicious prosecution, against Smith Motor Sales and its manager, Lawson Walters, the jury returned a verdict for $1,000 in favor of the plaintiff, Lawrence M. Kidd. From the judgment entered upon that verdict, the defendants have appealed.
The appellants maintain that the trial court erred: (1) In refusing to sustain their demurrer to the petition; (2) in refusing to grant their motion for a peremptory instruction; (3) in admitting incompetent evidence; (4) in giving an instruction authorizing recovery for physical pain and impairment of health; and (5) in refusing to give an offered instruction setting forth the appellants' interpretation of the statutes under which the plaintiff had been prosecuted.
J. T. Kidd, brother of the plaintiff, Lawrence M. Kidd, was the owner of a 1947 Ford automobile. During the year 1948 he was engaged in strip-mining operations near Ashland, Kentucky, and according to his testimony he had equipment worth $110,000, subject to a mortgage of $40,000. His equipment included a number of trucks, and from time to time he bought parts for the trucks from the defendant, Smith Motor Sales. He also had bought one of his trucks from Smith Motor Sales. On some of his purchases of parts, he was allowed a fleet-owner's discount of 30 percent. It appears that at the time of the controversy out of which this action arose, he owed Smith Motor Sales between $100 and $150 on a back bill for parts.
On November 21, 1948, J. T. Kidd's Ford automobile was damaged in a collision, and it was taken to the Smith Motor Sales to be repaired. It took about two weeks to repair the automobile, and during that period Smith Motor Sales permitted Kidd to use one of their cars. The repair bill amounted to almost $500, but Kidd was allowed to take his automobile, after it was repaired, without any question being raised as to his paying the bill. A few days later, Kidd brought his car back to Smith Motor Sales to have additional repair work done, it appearing that there was something wrong with a front spring. On this occasion, Kidd again was permitted to use one of the Smith Motor Sales' cars while his was being repaired, and when the repair work was completed he again was allowed to take his car out of the garage without any demand that he pay his bill.
Lawrence Kidd testified, and it was admitted by the bookkeeper for Smith Motor Sales, that some time during the period above mentioned, J. T. Kidd brought to the garage, and tendered in payment of the bill for repairing the Ford, a check from his insurance company; but the bookkeeper would not accept the check because a former mortgagee of the car was named as one of the payees, and J. T. Kidd took the check back for the purpose of having a new one issued.
On December 28, 1948, J. T. Kidd and his brother, Lawrence, again brought the Ford car to the garage of Smith Motor Sales, for further repairs. They claimed that the radiator had been defectively installed, and was leaking, and they demanded a new radiator. There was some argument as to whether the radiator could be repaired satisfactorily, or whether a new one was necessary, but the parts manager finally agreed to furnish a new radiator, and the old one was removed preparatory to installing the new one. At this point, J. T. Kidd was asked to come to the main office of the garage, and was told by the manager, Lawson Walters, that no further work would be done on the car until some arrangement was made for payment of Kidd's old bill for parts, and the bill for repairing the Ford. Walters testified that he also told J. T. Kidd he could not remove the car from the garage until the bill was settled, but J. T. Kidd denied that anything was said about not removing the car.
During the conversation in the main office, word was sent down to the mechanics not to do any more work on the car. It appears that Lawrence Kidd was standing by the car when the mechanics were told to cease work, but it is undisputed that no one told him not to remove the car from the garage.
After the conversation in the main office, J. T. Kidd returned to where the car was, and told his brother that it looked as though they were going to have to fix the car themselves. The old radiator and loose parts were loaded in the car and the two brothers drove the car out of the garage and down the street. Lawrence Kidd testified that the mechanics helped him load the parts in the car and moved a truck to make way for the car to be driven out, but this was denied by witnesses for the garage. The latter testified that the parts had been placed in the car at the time of dismantling the radiator, to keep them from being mislaid, and that the brothers 'jumped in' the car and hurriedly drove it away.
The Kidd brothers testified that they drove the car about two and one-half blocks from the garage, and then parked it along the street. One of the brothers went home to get a truck, and the car was towed to J. T. Kidd's home. The testimony for the garage was that several men from the garage drove around the streets for a couple of hours, immediately after the car was taken from the garage, and were unable to find the car. However, these men did not go to Kidd's home.
On December 30, two days after the car was taken, the owners of Smith Motor Sales advised their manager, Walters, to consult an attorney. He consulted an attorney who, in addition to being engaged in private practice, was Commonwealth's attorney for the district. Upon advice of the attorney, Walters swore out a warrant for the arrest of Lawrence Kidd and J. T. Kidd, on a charge of violating KRS 434.210 (fraudulent concealment or disposition of property on which there is a lien), and also instituted a civil attachment proceeding.
On either December 29 or December 30, an item appeared in the newspaper to the effect that a Ford automobile had been stolen from Smith Motor Sales. Lawrence Kidd testified that, immediately upon reading the item, he went to the telephone and called the State Police and the city police of Ashland, and told them that the car had not been stolen, but was at J. T. Kidd's home.
On the morning of December 31, the sheriff came to J. T. Kidd's home, with attachment papers, and took the Ford car. J. T. Kidd went with the sheriff, and after several hours secured the release of the car by giving a bond. On the afternoon of the same day, while J. T. Kidd was in town negotiating with the sheriff for the release of the car, the State Police came to the home and arrested Lawrence Kidd. He was placed in jail on the afternoon of December 31 and held there until January 3. It appears that he had a bondsman willing to give bond for his release, but no judicial officer was available to approve the bond, until January 3.
The grand jury, when the charge against Lawrence Kidd was referred to it, refused to return an indictment, ...