Casino Restaurant v. McWhorter

• Decision Date: 23 May 1950
• Docket Number: 6 Div. 911
• Citation: 35 Ala.App. 332,46 So.2d 582
• Parties: CASINO RESTAURANT, Inc. v. McWHORTER.
• Court: Alabama Court of Appeals

Page 582

46 So.2d 582

35 Ala.App. 332

CASINO RESTAURANT, Inc. v. McWHORTER.

6 Div. 911.

Court of Appeals of Alabama.

May 23, 1950.

Maurice F. Bishop and M. Lewis Gwaltney, of Birmingham, for appellant.

Hal Howard, of Birmingham, for appellee.

CARR, Judge.

William W. McWhorter brought suit against Casino Restaurant, Inc. and Jesse O. Weatherly. The cause of action is stated in four counts of the complaint.

The defendant's demurrer to each count was overruled, and there followed an agreement to plead in short by consent. All four counts were submitted to the jury, and the trial resulted in a verdict in favor of the plaintiff and against the defendant, Casino Restaurant, Inc., for $850.00.

The appellant filed a motion for a new trial and this was overruled.

The action of the court in overruling the demurrers to the complaint is not stressed for error in brief of counsel. Memphis & C. R. Co. v. Martin, 131 Ala. 269, 30 So. 827; Simmons v. Cochran, 252 Ala. 461, 41 So.2d 579; White v. White, 33 Ala.App. 403, 34 So.2d 182; Walker v. Ingram, Ala.App., 37 So.2d 682.

It is urged, however, that because counts three and four omit to aver the issuance of any process, properly describing it, these counts are for false imprisonment and not malicious prosecution.

Without bringing ourselves to a decision of the matter, we are free to observe that there appears some merit in this insistence. Davis v. Sanders, 133 Ala. 275, 32 So. 499; Grissom v. Lawler, 10 Ala.App. 540, 65 So. 705.

On the basis of this position counsel argues that it was error on the part of the court to instruct the jury as to malicious prosecution. This insistence cannot avail, because the question is not raised. No exception was interposed to the oral charge in this aspect, nor was the matter presented in any other manner. Of course, we cannot review the question in this state of the record.

The general affirmative charge was requested by the appellant as to each of these counts. So it is insisted that, on account of the defect or the insufficiency of the averments, these charges should not have been denied.

The authorities recognized the rule that, when the party litigants adopt a theory for the trial of a cause and it is tried with that understanding, the appellate court accepts the view that the pleadings present that theory. Loy v. Reid, 11 Ala.App. 231, 65 So. 855; Travis, Adm'r v. Sloss Sheffield Steel & Iron Co., 162 Ala. 605, 50 So. 108; Phillips et al. v. Phillips et al., 186 Ala. 545, 65 So. 49, Ann.Cas.1916D, 994; Seaboard Air Line R. Co. v. Lowe, 223 Ala. 542, 137 So. 448; Hanover Fire Ins. Co. v. Wood, 213 Ala. 132, 104 So. 224, 39 A.L.R. 1436; Manker v. Western Union Tel. Co., 137 Ala. 292, 34 So. 839; Roberts v. Murphy, 27 Ala.App. 281, 171 So. 757.

We come now to consider the question of whether the appellant was due the general affirmative charge because of the insufficiency of the evidence to support the averments of the complaint and each count thereof. The solution of this matter hinges on one factual inquiry: Did the appellant in any way instigate or procure the arrest of the appellee or was the arrest made by the police officer acting as a public official and solely at his own instance?

Without dispute Mr. Weatherly was the owner of the Casino Restaurant. It appears that appellee and one Harvey were customers at the restaurant. A dispute arose over the amount charged for service. The appellee insisted that he was due to pay for only a bottle of beer which he ordered; that a 'corkage charge' which was included on the ticket was unfairly assessed; that only Harvey took a drink of whiskey while they were seated at the table.

According to Mr. Weatherly's testimony the appellee cursed and was insulting in the presence of ladies in the restaurant. The latter denied this but stated that Harvey did curse.

Mr. Weatherly called the police by phone. Two officers came promptly, but Harvey left before their arrival.

We quote here from the testimony of one of the officers:

'Q. Prior to the arrest did Mr. Weatherly make a complaint to you concerning Mr. McWhorter? A. Yes, sir.

'Q. What complaint did he make? A. He made the complaint to us that he had drank a bottle of beer and that he charged him a cover fee of 5 cents I believe, and I think there was a bottle of coca cola consumed at the table too. It all amounted to $1.32 and the defendant refused to pay it, and as to the disorderly conduct there in the place, it was in the presence of women who were patrons of the place.'

The officer testified also that the appellee appeared to be sober and that he did not use any profanity in the presence or hearing of the witness. The policeman did state that the appellee was 'loud mouthed' and boisterous and 'once or twice he was boisterous all over the place and I told him, 'You are not the only person in this place, you will have to quiet down.' And so he quieted down.'

Mr. Weatherly testified as follows:

'Q. Then you called the police officers and when they arrived you told them just exactly what you have told the jury here this afternoon? A. Yes, sir.

'Q. At the time the police officers arrived you related to them exactly what you have told this jury, what Officer Prior testified here today? A. The little fellow left and Mr. McWhorter came on up to the cash register.

'Q. You related those facts to the officers? A. Yes, sir.

'Q. As Officer Prior testified? A. Yes, sir.'

'Q. You called the officers then for the purpose of having Mr. McWhorter arrested? A. I wasn't even thinking about that; I was trying to get that disturbing business out of there.

'Q. What did you tell the officers? A. I told them we had a $1.32 check and that he said he wouldn't pay it; he said he would pay for the beer and wouldn't pay for the rest.

'Q. Didn't you ask the officers to arrest him? A. I didn't ask the officers to arrest him; I was just explaining my position to them.'

The general rule applicable to the inquiry of instant concern is stated in Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754, 756:

'The injury is: (1) Whether or not the defendant or his agent directed, commanded, or in any way instigated the arrest; and (2) whether such conduct, if shown, was a material factor in causing the officer to make the arrest. Of course if the officer acts solely upon his own judgment and initiative, the defendant would not be responsible even though he had directed or requested such action, and even though he were actuated by malice or other improper motive.

'Very clearly, we think, a person may be the responsible instigator of an arrest without expressly commanding, requesting, or directing it. So the instruction requested by defendant that the phrase 'caused plaintiff to be arrested,' as used in the complaint, means that defendant commanded, requested, or directed plaintiff's arrest, was at least misleading, and for that reason properly refused.'

Chief Justice Gardner made this observation in American Ry. Express Co. v. Summers, 208 Ala. 531, 94 So. 737, 738: 'The plaintiff insists that the two agents for the defendant company in fact arrested him, but we are persuaded there is also evidece 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.'

In J. J. Newberry Co. v. Smith, 227 Ala. 234, 149 So. 669, 671, Justice Bouldin, writing for the court, said: 'A party may be guilty of false imprisonment in procuring an unlawful arrest by a police officer acting solely as a public officer, as where such party voluntarily aids and abets the officer; or by false charges induces the officer to make an arrest, though the officer may act in entire good faith.'- 'The general affirmative charge in favor of the defendant should not be given, where there is the slightest evidence showing right of recovery.' Wood v. Hacker, 23 Ala.App. 12, 121 So. 437, 440. See also, McMillan v. Aiken, 205 Ala. 35, 88 So. 135.

We have attempted hereinabove to set out the tendencies of the evidence fairly and accurately.

The rule prevails that, in determining the propriety of the general affirmative charge when requested by the defendant, the evidence favorable to the plaintiff must be accepted as true. In such case we are required to take the evidence in its most favorable light for the plaintiff and accord to him all legitimate inferences therefrom. Alabama Power Co. v. Buck, 250 Ala. 618, 35 So.2d 355; Key v....