Caudle v. Sears, Roebuck & Co.

• Decision Date: 24 March 1938
• Docket Number: 7 Div. 499.
• Parties: CAUDLE v. SEARS, ROEBUCK & CO.
• Court: Alabama Supreme Court

182 So. 461

236 Ala. 37

CAUDLE v. SEARS, ROEBUCK & CO.

7 Div. 499.

Supreme Court of Alabama

March 24, 1938

Rehearing Denied April 21, 1938.

Appeal from Circuit Court, Etowah County; Alto V. Lee, Judge.

Action for false imprisonment and malicious prosecution by Mrs. J B. Caudle against Sears, Roebuck & Company. Plaintiff, being dissatisfied with the judgment in her favor, appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

L. B Rainey, of Gadsden, for appellant.

Goodhue & Lusk, of Gadsden, for appellee.

BROWN Justice.

This is an action to recover damages for false imprisonment and malicious prosecution of the plaintiff by the defendant, and the appeal is by the plaintiff from a judgment on the verdict of a jury assessing the plaintiff's damages at $250. Therefore, only rulings affecting the measure and quantum of damages are presented for review.

The plaintiff's motion for new trial questioned the adequacy of the award, but the bill of exceptions does not show the ruling thereon and exception reserved to such ruling; hence the first assignment of error predicated on such ruling cannot be sustained. Code 1923, § 6088; Stover v. State, 204 Ala. 311, 85 So. 393; Newell Contracting Co. v. Glenn, 214 Ala. 282, 107 So. 801; Thomas v. Carter, 218 Ala. 55, 117 So. 634.

Special charges 1 and 12, given at the instance of the defendant, instructed the jury that although they were reasonably satisfied that the arrest and imprisonment of plaintiff was unlawful, "you should not award any punitive or exemplary damages if you are reasonably satisfied from the evidence that the unlawful arrest and false imprisonment of the plaintiff was brought about by the agents or servants of the defendant innocently, in good faith, and without malice in fact or in law." (Italics supplied.)

In the light of some phases of the evidence going to show aggravating circumstances attending the arrest, that it was made by the servants and agents of the defendant without a warrant, that plaintiff was requested to sign a confession that she was guilty or "else go to jail," and that said agents or servants put her in jail when she refused to sign such confession in disregard of the requirements of section 3269 of the Code, and in the face of information going to show that plaintiff was just out of a hospital and was then not well, we are of the opinion that these charges invaded the province of the jury and constitute reversible error. Rhodes v. McWilson, 192 Ala. 675, 69 So. 69; Gambill v. Schmuck, 131 Ala. 321, 31 So. 604; Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754; Southern Ry. Co. v. Hall,

209 Ala. 237, 96 So. 73; Birmingham Ledger Co. v. Buchanan, 10 Ala.App. 527, 65 So. 667. Moreover, they left the jury to determine what in law constituted malice.

The text, 25 C.J. 565, § 179, cited by appellee, does not support the soundness of these instructions. The full text is: "Exemplary damages are never allowed where the false imprisonment was brought about innocently, in good faith, without malice in fact or in law, by public officers in the belief that they are performing their public duties, or private persons acting in honest mistake with a reasonably founded belief in the lawfulness of the act, whether the public interest be involved, as in the apprehension of supposed wrongdoers, or merely private interests. The fact that the wrong was done with good motive will not protect the wrongdoer from liability for punitive damages if he knowingly acts illegally." (Italics supplied.)

The agents or servants of the defendant are conclusively presumed to know that the law prohibited the confinement of the plaintiff in the county jail, in the circumstances, without the intervention of a magistrate, and that such confinement under the facts of the case was an invasion of plaintiff's right of liberty. Code 1923, § 3269; Cunningham & Son v. Baker, Peterson & Co., 104 Ala. 160, 169, 16 So. 68, 53 Am.St.Rep. 27; Bank of Cottonwood et al. v. Hood, 227 Ala. 237, 149 So. 676.

Charges 16 and 17 given for the defendant pretermit that defendant's agents and servants did not knowingly act illegally in placing the plaintiff in jail, and were erroneously given.

In the absence of claim for special damages in count 9, and a showing that such special damages were necessarily incurred in procuring plaintiff's discharge from unlawful arrest and restraint, charge 21 was given without error. Fidelity & Deposit Co. of Maryland et al. v. Adkins, 222 Ala. 17, 130 So. 552.

For the errors noted the judgment of the circuit court is reversed.

Reversed and remanded.

ANDERSON, C.J., and FOSTER and KNIGHT, JJ., concur.

On Rehearing.

BROWN Justice.

The testimony of the witnesses Chavers and Clark stressed in the application for rehearing, was not overlooked in disposing of the questions presented by the appeal. The statement of Chavers was: "That at that time he was a commissioned officer of this county, and had been since the first of August, 1934." This may be literally true and still he had no more authority than any other person to make an arrest. The same...