Central Iron & Coal Co. v. Wright

• Decision Date: 20 May 1924
• Docket Number: 6 Div. 389.
• Citation: 20 Ala.App. 82,101 So. 815
• Parties: CENTRAL IRON & COAL CO. v. WRIGHT.
• Court: Alabama Court of Appeals

101 So. 815

20 Ala.App. 82

CENTRAL IRON & COAL CO. v. WRIGHT.

6 Div. 389.

Court of Appeals of Alabama

May 20, 1924

Rehearing Denied June 17, 1924.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action for false imprisonment and malicious prosecution by H. H Wright against the Central Iron & Coal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Certiorari denied by the Supreme Court in Ex parte Central Iron & Coal Co., 101 So. 824.

Jones, Jones & Van de Graaff and A. V. Van de Graaff, all of Tuscaloosa, for appellant.

Edward de Graffenried, of Tuscaloosa, for appellee.

BRICKEN, P.J.

H. H Wright brought his action in the circuit court of Tuscaloosa county, Ala., to recover of Central Iron & Coal Company the sum of $2,900, first, for malicious prosecution as charged in count second of the complaint, and, second, for false imprisonment, as charged in the third count of the complaint. Issue was joined between the plaintiff and defendant on plaintiff's complaint as set out in the second and third counts thereof, and defendant's plea of the general issue, with leave to give in evidence anything that might be specially pleaded. There was judgment for plaintiff in the sum of $600, and from this judgment, as well as the judgment of the trial court upon defendant's motion for a new trial, this appeal is taken.

H. H Wright, plaintiff in the court below, was in the employ of defendant company prior to and probably including the 30th day of April, 1922. On the morning of the 30th day of April, 1922, plaintiff was discharged from the employment of defendant company. At this time one Willis Jones, who was a deputy sheriff of Tuscaloosa county, Ala., was also in the employ of the defendant company, his salary as deputy sheriff being paid by the company, and as to the scope of his employment the said Jones, among other things, testified, "When I had this transaction with the plaintiff, I was engaged in regular duties for the company." If this statement be true, then the scope of the employment and the scope and line of duty of this witness in so far as defendant company is concerned was, among other things, to warn persons off of defendant's property and to arrest trespassers thereon.

On the night of April 30, 1922, according to the testimony of plaintiff, Willis Jones went to the house of Frank Swanager, where plaintiff was then boarding, between 7:30 and 8 o'clock, and when plaintiff was partly undressed, plaintiff being then in the act of retiring for the night and stated to plaintiff: "Henry, you have to leave Holt. You have got to do it to-night." To this statement plaintiff replied, "Mr. Jones, it is impossible for me to go away to-night." Thereupon said Jones replied, "Well, do it in the morning," and the plaintiff answered, "I will do that." According to the testimony of plaintiff, he spent the night at Holt and caught a street car for Tuscaloosa the following morning at 7:30 or 8 o'clock. Plaintiff returned to Holt the same afternoon, according to his statement, for the purpose of getting some clothes and "to wind up my business down there." According to plaintiff's statement, he applied to Jones, unnecessarily, we think, if he in fact returned for his clothes and to wind up his business, for permission to get his clothes and wind up his business, and to this request Jones stated to plaintiff that he "could go down to the furnace and get my (plaintiff's) clothes and wind up my (plaintiff's) business and to make it as short as possible." Thereupon plaintiff went to the furnace and got some soiled overalls, which were too dirty to be packed and which he sold to one Malloy Swanager; next he paid one George Higganbottom some "time" which plaintiff had received and which belonged to said Higganbottom and which payment was corroborated by said Higganbottom, and thereupon, on his return from the furnace to the car station, he stopped at defendant's commissary, which, plaintiff testified, was about midway between furnace and station, to get some money changed; the money being changed, plaintiff was leaving the commissary when he was arrested by Jones, about 5.15 o'clock, and about one hour after plaintiff's return to defendant's premises. Jones caught plaintiff by the arm and said: "Come on, God damn you! I am going to learn you something. You have been too smart." Jones carried plaintiff from Holt to Tuscaloosa and to the office of a justice of the peace, Peck Cornell, where Jones swore out a warrant for plaintiff. Jones next carried plaintiff to the county jail of Tuscaloosa county, where he imprisoned plaintiff, and where plaintiff remained imprisoned until 11 o'clock a. m., May 6, 1922, when he was arraigned and tried before the county court of Tuscaloosa county, to which the warrant was returnable, on a charge of trespass after warning, and of which said charge plaintiff was then and there judicially ascertained to be not guilty, and was, accordingly, acquitted.

Willis Jones, testifying in behalf of the defendant, stated the facts to be substantially as follows: That he found the plaintiff at night, meaning the night of April 30th; that he told plaintiff that the superintendent had told witness to tell plaintiff to get off the company's property and to stay off; that he told plaintiff that plaintiff could go in the morning; that plaintiff first said he could go in the morning and then said he (plaintiff) would go when he got ready; that the next morning he told plaintiff about 9 o'clock that he thought he had told plaintiff to stay off the property; that plaintiff replied, "I am going now," and, after walking a few feet, said that he (plaintiff) did not know whether he was going or not; that he might go; that he next saw plaintiff in the afternoon, about 3 o'clock, when plaintiff asked for permission to go to the furnace, which was refused by the witness, and when the witness further stated to the plaintiff to get off of the property and to stay off of it; that he next saw plaintiff walking around down about the furnace; that witness did not then say anything to plaintiff and that it was then nearly 4 o'clock; that witness next saw plaintiff in the commissary, which was owned and operated by the defendant and that plaintiff was then leaning against a radiator in the commissary and that the witness then said to plaintiff, "Henry, I thought I told you to go away from here, to get off of the company's property and to stay off of it," which statement plaintiff admitted that witness had made to him; that he next asked plaintiff what right he had there and that plaintiff answered he was not ready to go; that witness then said to plaintiff, "Well, I will have to arrest you, Henry, for being on their property trespassing;" that at the time he arrested plaintiff he (the witness) did not touch him; that he had consulted with Mr. Cornell, a justice of the peace, in regard to the law of trespass after warning; that when he arrested plaintiff he (the plaintiff) was in the presence of the witness; that he carried him to the sheriff's office and made an affidavit and got a warrant of arrest for plaintiff and turned him over to the sheriff.

On cross-examination, among other things, the witness testified that Mr. Henry Jones was the regular attorney for defendant; that he (the witness) did not consult with defendant's attorney until after the arrest; that Mr. Jones, defendant's attorney, prosecuted the plaintiff in the county court; that the plaintiff stayed in jail five or six days.

There are eight assignments of error, six of which are insisted upon. The first assignment of error is based upon the action of the trial court in giving special written charge A requested by plaintiff. Charge A is as follows:

"A. I charge you, gentlemen of the jury, that malice in law and malice in fact are not one and the same thing, and that if you are reasonably satisfied from the evidence that the defendant caused the arrest of the plaintiff upon a charge of trespass after warning without probable cause therefor, and further that before the commencement of action that charge was judicially investigated and that said prosecution ended and that the plaintiff was discharged, you may infer malice in law from those facts, and if you are further reasonably satisfied from the evidence that the plaintiff's arrest was maliciously caused by the defendant, the plaintiff will be entitled to a verdict at your hands."

Appellant insists that this charge expressly authorized the jury to infer malice from the fact that the charge against appellee had been judicially investigated, the prosecution ended, and the appellee discharged. We do not agree with appellant in its contention as to the meaning of said charge. The charge asserts, first, that malice in law and malice in fact are not one and the same thing, second, that if the jury are reasonably satisfied from the evidence that the defendant caused the arrest of the plaintiff upon a charge of trespass after warning without probable cause therefor, and that before the commencement of the action the charge against plaintiff had been judicially investigated and said prosecution ended and the plaintiff discharged, then, third, the jury would be authorized to infer malice in law from these facts. What facts? That the arrest was without probable cause and that the charge had been judicially investigated, the prosecution ended, and the defendant discharged. If the arrest was without probable cause therefor, then this alone would be sufficient to authorize the inference of malice, for, as was said in the quotation set out in the case of Fowlkes v. Lewis, 10 Ala. App. 543, 555, 65 So. 724, 728:

"Any other motive than a bona fide purpose to bring the accused to punishment as a

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