Birmingham Bottling Co. v. Morris

• Decision Date: 23 April 1915
• Docket Number: 10
• Parties: BIRMINGHAM BOTTLING CO. v. MORRIS.
• Court: Alabama Supreme Court

69 So. 85

193 Ala. 627

BIRMINGHAM BOTTLING CO. v. MORRIS.

No. 10

Supreme Court of Alabama

April 23, 1915

Rehearing Denied June 3, 1915

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action for malicious prosecution by W.C. Morris against the Birmingham Bottling Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Transferred from the Court of Appeals of Alabama under section 6, Act April 18, 1911 (Gen.Acts 1911, p. 450).

Count 5 is as follows:

"Plaintiff claims of defendant *** damages for maliciously and without probable cause therefor causing plaintiff to be arrested under a warrant issued by H.B Abernathy, judge of the Birmingham court of common pleas on to wit, *** on a charge of larceny, which charge before the commencement of this action has been judicially investigated and plaintiff discharged on, to wit, *** and as a proximate consequence thereof plaintiff sustained the damages and injuries set out in the first count of the complaint, which is hereby made a part hereof, as if incorporated herein."

Allen &amp Bell, of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

MAYFIELD J.

There is no merit in the motion to dismiss this appeal. It is made to appear that the case was submitted with all proper diligence by the appellant. While the transcript was not filed at the term of court, or the call of the division, at which the rule prescribed it should be filed, yet it is made to appear that the bill of exceptions was not signed by the trial court within time to allow it to be transcribed and sent up here for submission at the first call to which the appeal was returnable, and this we have uniformly and repeatedly held to be a sufficient excuse for failure to file the transcript on or by the day mentioned in rule 41 of this court (56 South. vi). The certificate of appeal was filed in the Court of Appeals at the proper time, and the case was submitted at the first call at which it could have been submitted after the bill of exceptions was signed. An appellant should not be required to submit his cause before he can obtain a bill of exceptions, according to law, when the bill is a necessary part of his record on appeal. This was an action for malicious prosecution, and resulted in a judgment for plaintiff.

While count 5 of the complaint is not quite so full as the form provided in the Code, we are inclined to hold that it meets the statutory requirements. It does not allege in terms that the prosecution instituted by the defendant against the plaintiff had "ended," but it does, we think allege it in substance. Moreover, the record affirmatively shows that the case was tried on the theory that it was so alleged, and the proof showed it, and the court so charged the jury. This appears in charge 17, requested by the defendant, which was given, and by other charges to the same effect. Charge 17 is as follows:

"I charge you, as a matter of law, that before plaintiff can recover in this case you must be reasonably satisfied of the three following things: First, that the prosecution was instituted by the defendant, or by its authorized agent, acting within the line and scope of his employment; second, that it was done maliciously and without probable cause; third, that said prosecution, before the commencement of this suit, was judicially investigated and determined in favor of the plaintiff--and if either one of these elements have not been proved to your reasonable satisfaction, then the plaintiff cannot recover."

The strictness of the rulings of this court, as to counts of the complaint in actions of this kind, has been relented since the adoption of the Code of 1852. The case of Ragsdale v. Bowles, 16 Ala. 62, was overruled by this court in the case of Southern Car Company v. Adams, 131 Ala. 147, 32 So. 503. While the counts in that case were probably somewhat fuller than in this case, yet they did in terms follow the language, but they were held sufficient; and the court in that case said: "It is everywhere held that an action for malicious prosecution cannot be maintained before the termination of the prosecution; but it is held that the criminal prosecution may be said to have terminated when there is a verdict of not guilty, or when the grand jury ignores a bill, when a nolle prosequi has been entered, or when the accused has been discharged from bail or imprisonment. Lowe v. Wartman, 47 N.J.Law, 413 ; Pope v. Pollock, 4 L.R.A. 255, notes; 14 Am. & Eng.Ency.Law, 29-31, and notes. In the volume last cited, the principle is stated, sustained by citation of authorities, that: 'All that is necessary is that the particular prosecution or proceeding shall have been disposed of in a manner that it cannot be revived, and that the prosecutor, if he intends to proceed further, must institute proceedings de novo.' " 131 Ala. 156, 32 So. 506.

In the more recent case of Sanders v. Davis, 153 Ala. 375, 380, 44 So. 979, 981, it is said:

"The averments must show: First, a judicial proceeding; second, that it was instigated by the defendant; third, want of probable cause; fourth, malice; fifth, the termination of the judicial proceeding favorably to the plaintiff; and, sixth, the damage. 13 Ency. Pl. & Pr. 427."

We do not mean in this decision to recede from what is said in these two cases as to the sufficiency of counts for malicious prosecution, but hold to what is there said. We hold--what we have many times reiterated--that while the code form is sufficient, it need not be literally followed. It is sufficient to follow it in substance. Neither do we decide that infirmities of material allegations can be cured by the evidence or by charges of the court, because evidence without allegation is as impotent as allegation without proof, and pleadings cannot be settled by charges of the court. But we may look to the evidence, the pleadings, and the charges, when doubt arises as to the true issues upon which the case was tried, to ascertain the theory upon which the cause was litigated; and by these means the record in this case shows that the case was tried on the correct theory.

There were in the complaint some counts which were clearly defective, and to which demurrers were overruled; but the trial court charged them out of the case, evidently upon the theory that they were insufficient, because they were certainly proven if the fifth was.

There was no error in the trial court's allowing plaintiff to testify that he was arrested, and that he was tried in the courts. These were material allegations. This evidence was merely introductory of the subject, and did not violate any rule of evidence as to primary and secondary evidence. The warrant and records of the court were subsequently introduced, and would have cured the error, if it had been error. It is not only permissible, but it is sometimes necessary, to propound to witnesses questions prima facie objectionable because calling for secondary evidence. Where such questions and their answers are merely introductory or explanatory of other competent and legal evidence which is to follow and which does follow,...