Abingdon Mills v. Grogan

• Decision Date: 10 May 1910
• Citation: 167 Ala. 146,52 So. 596
• Parties: ABINGDON MILLS v. GROGAN.
• Court: Alabama Supreme Court

52 So. 596

167 Ala. 146

ABINGDON MILLS v. GROGAN.

Supreme Court of Alabama

May 10, 1910

Appeal from Law and Equity Court, Madison County; Tancred Betts Judge.

Action by A. R. Grogan against the Abingdon Mills. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The complaint contained five counts, all of which were in Code form. Plea 4, to which demurrer was sustained, is as follows "The affidavit for the arrest of the plaintiff was made by W. B. Sanders, and the arrest of the plaintiff was made by the said Sanders as a deputy sheriff of Madison county Alabama, and before making said affidavit and said arrest said Sanders made to James H. Pryde, a reputable practicing attorney at law and solicitor, from Madison county, Alabama a full and fair statement of all the facts tending to show that plaintiff was guilty, as said Sanders understood they would be shown by the evidence, and after such statement, and upon the advice of said Pryde, said Sanders in good faith instituted the prosecution by making affidavit as aforesaid."

The facts as made by the proof were that Grogan was connected with the Fulton Bag & Cotton Mills, of Atlanta, and came to Huntsville to go back with certain mill hands, employés of the Abingdon Mills, with whom one of the officers of the first-named mill had had correspondence relative to their going to Atlanta to become employés of the said Fulton Company. While at Huntsville, he was arrested by one Sanders, and employés of the Abingdon Mills, and also a deputy sheriff, on a warrant issued by one Vaught, a justice of the peace, charging him with enticing away laborers from the Abingdon Mills; the affidavit having been made by Sanders. He was arrested and imprisoned for about 16 hours. The grand jury did not indict him for enticing away laborers, but did indict him for carrying on the business of an immigration agent without license, of which charge he was acquitted. Humes, an attorney for the Abingdon Mills, and one of its stockholders, then dictated an affidavit, which was sworn to by Sanders, again charging Grogan with enticing away laborers, and he waived to the grand jury, and was not indicted. It seems that Brown, Herring, and Sanders were employés of the Abingdon Mills, in the situation of paymaster, assistant superintendent, and general utility man, in the order named. It seems that Maggie Clutch signed several of the letters written to the Fulton Mills, and that upon his arrival Grogan went out and had a conference with the said Maggie Clutch.

The plaintiff objected to that portion of the showing made for the witness Herring, which is as follows: "That said witness went with W. B. Sanders and Roy Brown to see James H. Pryde, county solicitor, before plaintiff was arrested, and that they stated to said Pryde all the facts known to them relative to Grogan's trying to hire laborers and all the information they had about said matter, and asked Mr. Pryde's advice, and that he advised that Grogan be arrested on a charge of enticing away laborers."

The following charges were refused the defendant, among others; "(8) If Grogan offered Couch or Anelton higher wages if they would go to Atlanta, knowing them to be employés of the Abingdon Mills, this would be probable cause for the prosecution of Grogan on the charge of enticing labor. (9) Even though some of the employés of defendant may have written letters to Brown, in Atlanta, indicating that they would like to go to Atlanta, if thereafter Grogan came to Huntsville and offered them higher wages if they would go, or offered to pay their debts if they would go, this would make Grogan guilty of enticing them away."

Paul Speake and Cooper & Cooper, for appellant.

M. H. Lanier and Taylor & Drake, for appellee.

ANDERSON J.

Each of the counts of the complaint were for a malicious prosecution and were in Code form, and which said form applies to corporations as well as persons. The counts charged the corporation with the act complained of, and the averment that the prosecution was instituted by its agents was superfluous and unnecessary, as the act charged could have only been done through its agent or representative. It charges the corporation with instituting the prosecution, and in order for it to have been done by the corporation it must have appeared that the agent or representative was acting within the scope or line of his authority, and it was not necessary to aver that the agent or representative was so acting. Nor did the complaint have to aver the name of the agent or representative. Birmingham Ry. Co. v. City Stable Co., 119 Ala. 615, 24 So. 558, 72 Am. St. Rep. 955. The trial court did not err in overruling the demurrers to the complaint.

Whether the trial court did or did not err in sustaining the demurrer to plea 4 we need not decide, as the defendant could get the benefit of the matter there set up, under the general issue, which was pleaded and under which the defendant offered evidence of the facts set up in said plea 4. O'Neal v. McKinna, 116 Ala. 620, 22 So. 905; McLeod v. McLeod, 73 Ala. 42; Shannon v. Simms, 146 Ala. 673, 40 So. 574; Goldstein v. Drysdale, 148 Ala. 486, 42 So. 744.

While no general rule can be laid down as to the degree of diligence to be used in making search for the original document, in order to lay a predicate for the introduction of secondary evidence of the contents thereof, it depending largely upon the circumstances of the case and the character of the document, yet it must be shown that every reasonable effort which would result in its production was made without avail. Sims v. State, 155 Ala. 96, 46 So. 493; 1 Greenleaf on Evidence, 558; O'Neal v. McKinna, 116 Ala. 606, 22 So. 905; Boulden v. State, 102 Ala 78, 15 So. 341; Ala. Construction Co. v. Meador, 143 Ala. 336, 39 So. 216. Applying the foregoing rule to the case at bar, we are of the opinion that the plaintiff did not lay a sufficient predicate of the loss of the affidavits and warrants, and the trial court erred in permitting secondary evidence of their contents. They were last traced into the custody of the grand jury, and there was no effort to show by the foreman or any other member thereof what had become of same. Townes, a deputy clerk, said they returned some papers; but he did not know whether they returned all papers, or that the ones that were returned included the ones in question. He said, "Sometimes they do not turn over to the clerk all their papers." He also stated that Roper, the...