American Ry. Express Co. v. Summers

• Decision Date: 26 October 1922
• Docket Number: 6 Div. 720.
• Citation: 208 Ala. 531,94 So. 737
• Parties: AMERICAN RY. EXPRESS CO. v. SUMMERS.
• Court: Alabama Supreme Court

94 So. 737

208 Ala. 531

AMERICAN RY. EXPRESS CO. v. SUMMERS.

6 Div. 720.

Supreme Court of Alabama

October 26, 1922

Rehearing Granted Dec. 7, 1922.

Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.

Action for false imprisonment by Fletcher Summers against the American Railway Express Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded.

Tillman Bradley & Baldwin, of Birmingham, for appellant.

London Yancey & Brower, of Birmingham, for appellee.

GARDNER J.

This is an appeal from a judgment recovered by the appellee against the appellant based upon count 5 of the complaint, which sought recovery as for false imprisonment.

The first question argued by counsel for appellant relates to the action of the court in overruling demurrer to this count of the complaint. The count avers that the defendant's servant or agent, acting within the line and scope of his employment, wrongfully arrested and imprisoned the plaintiff or wrongfully caused the plaintiff to be arrested and imprisoned for a long time. And the argument is made that this count contains two distinct and inconsistent causes of action, in that it averred that the arrest of the plaintiff was by defendant's agent or servant, or, in the alternative, that such agent wrongfully caused the plaintiff to be arrested. Counsel rely most strongly upon the authority of B. R., L. & P. Co. v. Nicholas, 181 Ala. 491, 61 So. 361, but we are persuaded that this authority does not support the contention made as applicable to this particular case. The count does not state two distinct and separate causes of action, but only one cause of action-false imprisonment of the plaintiff. It is merely alleged in the alternative that either defendant's agent himself arrested the plaintiff or caused him to be arrested. The alternative averment therefore does not have reference to a separate cause of action, but to the manner in which the alleged wrong was committed as constituting the same cause of action. The cases of McNamara v. Logan, 100 Ala 187, 14 So. 175, and L. & N. R. R. Co. v. Mothershed, 97 Ala. 261, 12 So. 714, support by clear analogy the conclusion which we have reached as to the sufficiency of this count. While the question was not decided in the case of Reach v. Quinn, 159 Ala. 340, 48 So. 540, yet the language of the opinion illustrates the view of the court as to the sufficiency of the count worded in like language. The demurrer was properly overruled.

Plaintiff was the foreman of a switching crew for the Southern Railway in Birmingham, having been in the service for a long number of years. On May 19, 1920, he was arrested without a warrant and imprisoned for more than 24 hours, being informed that his arrest was on account of the robbery of an express car. He was arrested with two other members of his crew, one Hammond and Burney, and was subsequently acquitted upon his trial. The evidence for the plaintiff tended to show two special agents of the defendant express company accompanied by two city detectives effected his arrest, while acting within the line and scope of their authority. The plaintiff insists that the two agents for the defendant company in fact arrested him, but we are persuaded there is also evidence in the record from which the jury could reasonably infer that, if these agents did not in fact arrest the plaintiff, they caused him to be arrested by the city officers who accompanied them. This inference may be drawn from the facts and circumstances, and it is not essential there should be evidence of express command or direction to the officer. McAleer v. Good, 216 Pa. 473, 65 A. 934, 10 L. R. A. (N. S.) 303, 116 Am. St. Rep. 782; note Lemmon v. King, L. R. A. 1915E, 883. Plaintiff relies for recovery upon the unlawfulness of his arrest.

The defendant insisted, in the first place, that its agents took no part in the arrest, but merely gave the information to the city detectives upon inquiry being made, and accompanied these detectives at their request for the purpose of identifying the parties, and, in the second place, if the agents of the defendant were responsible for the plaintiff's arrest, it was justifiable upon the ground a felony had been committed and that the defendant at the time had probable cause to believe that the plaintiff was guilty thereof.

The two sections of the Criminal Code of 1907 having reference to an arrest without a warrant, as applicable to this case, are sections 6269 and 6273.

The two agents of the express company were named Moser and Boatwright. The latter also appears to have been a special officer of the city at the time of this arrest, but as to Moser the evidence leaves it uncertain concerning his authority to arrest. It could be very reasonably inferred from the evidence that he was in fact not a public officer, and acted in a private capacity as agent for the express company.

Under the common law a public officer was authorized to arrest for a felony without a warrant upon reasonable grounds. The authorities recognize a distinction, however, as to the right of a private person to arrest for a felony under the same circumstances. The authority of a private individual is more limited and confined. Under the decided weight of authority such private individual, when called upon to justify, must show that a felony had actually been committed, and he had reasonable grounds for believing the person arrested to be guilty. These distinctions are fully discussed in Palmer v. Cent. Ry. Co., 92 Me. 399, 42 A. 800, 44 L. R. A. 673, 69 Am. St. Rep. 513, Diers v. Mallon, 46 Neb. 121, 64 N.W. 722, 50 Am. St. Rep. 598, and Filer v. Smith, 96 Mich. 347, 55 N.W. 999, 35 Am. St. Rep. 603, and have been embodied in our statutory system as disclosed by the sections of the Code above cited.

If the jury should find, therefore, that Moser was not a public officer, but acted as a private individual, and that he in fact arrested the plaintiff without a warrant, then justification therefor must rest upon the fact that a felony had in fact been committed, and that he had reasonable cause to believe the plaintiff had...