Boshell v. Cunningham

• Decision Date: 29 November 1917
• Docket Number: 6 Div. 630
• Citation: 76 So. 937,200 Ala. 579
• Parties: BOSHELL et al. v. CUNNINGHAM.
• Court: Alabama Supreme Court

76 So. 937

200 Ala. 579

BOSHELL et al. v. CUNNINGHAM.

6 Div. 630

Supreme Court of Alabama

November 29, 1917

Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.

Action by Rufus M. Cunningham against Will J. Boshell and others for damages for false imprisonment, malicious prosecution, and assault and battery. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under section 6, p 449, Acts 1911. Reversed and remanded.

Bankhead & Bankhead, of Jasper, for appellants.

Ray &amp Cooner, of Jasper, for appellee.

McCLELLAN J.

The appellee (plaintiff) was awarded a judgment against the three appellants, upon whose separate, several assignments of error this review is invoked. As finally submitted to the jury, the complaint contained six counts. Those numbered 1, 2, and 4 charge the defendants with either arresting and imprisoning the plaintiff or causing the arrest and imprisonment of the plaintiff on a charge of larceny, maliciously and without probable cause therefor. Count 3 charged the defendants with causing plaintiff's arrest under a warrant issued by Knight, justice of the peace, maliciously and without probable cause therefor; the prosecution having been duly investigated, and the plaintiff discharged. Count 5 complains of an assault and battery committed on the plaintiff by the defendants. Count 6 C alleges a wrongful and illegal arrest and imprisonment of the plaintiff by the defendants. There are no assignments of error complaining of any rulings on the pleadings. Of the 25 errors assigned, 12 only are insisted upon in brief for appellants. They will be considered in the order of their presentation in the brief.

It is first argued that error was committed in refusing special charges F and G, each of which purported to instruct the jury that, if they believed the evidence, they should find in favor of the defendants King and W.R. Boshell, respectively. These requests for instructions were bad in form; and this alone justified the trial court in refusing them. The proper form, in circumstances warranting the giving of the general affirmative charge, is to instruct that they should not return a verdict for the plaintiff against the defendant requesting the particular instruction; whereas these requests exacted affirmative findings in favor of the respective defendants.

The next error assigned is predicated of these recitals in the bill of exceptions:

"The witness was then asked the following question by the counsel for the plaintiff: 'Q. State to the jury whether or not you paid any attorneys for defending you in the criminal case, and, if so, how much. (The defendants objected to the question because same called for incompetent irrelevant, and immaterial evidence, and for the further reason that same was not a proper measure [element] of damages. The objection was overruled by the court, and the defendant by its counsel then and there duly excepted in open court to said ruling.) Q. Did you pay any attorney's fee to defend you in the case? A. I did.' "

In counts 4 and 6 C the plaintiff claimed special damages for attorney's fees expended by him. It is manifest he was entitled to offer evidence in support of this claim. The particular question to which the objection was made was not answered. Immediately succeeding the ruling of the court and the reservation of an exception, another entirely permissible question was propounded and answered. No objection appears to have been made to the testimony of the witness stating the amount he paid for the services of an attorney for defending him. Had proper objection been seasonably taken to this feature of his testimony, the rule stated in Walker v. Gunnels, 188 Ala. 206, 209, 210, 66 So. 45, would doubtless have led the court to sustain it. This assignment, numbered 1, is without merit.

After the witness Ed Cunningham had testified that he did not hear his brother tell Rufus (plaintiff) that he did not have any more receptacles "to put anything in," the witness was asked this question: "You won't swear that he didn't say it, will you?" The court, on objection, disallowed the question. This ruling was proper. The pith of the inquiry counsel had in mind should have been submitted to the witness by a question calling for his response to the fact, not to what he would or would not "swear."

No prejudicial error attended the action of the court in refusing to permit the witness King (defendant) to be asked whether the sheriff told him over the phone to have the sheriff's deputy (Burkett) bring the plaintiff to Jasper from Townley. The substance of this had already been stated by King; and King later testified that he himself had nothing whatever to do with ordering plaintiff to be carried to Jasper or with his removal to Jasper.

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