Conoly v. Imperial Tobacco Co

• Decision Date: 05 December 1940
• Docket Number: No. 28511.,28511.
• Parties: CONOLY . v. IMPERIAL TOBACCO CO. et al.
• Court: Georgia Court of Appeals

12 S.E.2d 398

63 Ga.App. 880

CONOLY .

v.IMPERIAL TOBACCO CO. et al.

No. 28511.

Court of Appeals of Georgia,

Division No. 2.

Dec. 5, 1940.

[COPYRIGHT MATERIAL OMITTED]

Syllabus by the Court.

By reason of the errors pointed out in the charge of the court, it was error to overrule the plaintiff's motion for new trial.

FELTON, J., dissenting in part.

Error from Superior Court, Tift County; R. Eve, Judge.

Suit by W. H. Conoly, as next friend of his minor son, Embert Jackson Conoly, against the Imperial Tobacco Company, etc, and others, to recover damages on account of alleged illegal arrest and false imprisonment of the minor by the defendants. To review a judgment for defendants, the plaintiff brings error.

Reversed.

W. H. Conoly, as next friend of his minor son, Embert Jackson (Jack) Conoly, aged eleven years, instituted suit against John Duffy, a police officer of the City of Tifton, S. B. Lassiter, manager of the Imperial Tobacco Company of Great Britain and Ireland, Ltd, and said corporation, seeking to recover damages on account of the alleged illegal arrest and false imprisonment of such boy by the defendants. It was alleged in the petition that Lassiter, as agent of the tobacco company, and Duffy, as such police officer, came to the school attended by Jack Conoly and accused Jack and four other named boys of breaking a lock on a door of a building of the tobacco company, and of stealing therefrom certain articles; that Jack Conoly was not guilty of such charge; that, nevertheless, Lassiter "caused the same Embert Jackson Conoly to be placed in his automobile and carried him, together with certain other boys of similar age, through the town of Tifton;" that the boys were first brought to the plaintiff's place of employment, and there such defendants again accused Jack Conoly with the offense of burglary; that the father thereupon requested that his son be released, which the defendants refused to do, but carried him to other places in Tifton and in the presence of various other people reiterated the accusation of burglary against Jack Conoly; that the restraint of Jack Conoly in carrying him from place to place in Lassiter's automobile constituted false imprisonment, which imprisonment was with-out probable cause; that no warrant had been issued for the arrest of Jack Conoly; that no crime had been committed in the presence of either Duffy or Lassiter; that after about an hour's time, "realizing that the accusation of burglary against Embert Jackson Conoly was groundless, " Duffy and Lassiter returned the boy to the school-house and released him; that no charges were filed against him; and that in all of the acts alleged Lassiter was acting within the scope of his employment, as manager of the Imperial Tobacco Company, in trying to protect his employer's property. By an amendment to the petition, John Duffy was stricken as a party defendant.

The remaining defendants, in their plea and answer, admitted the jurisdiction of the court, and denied liability, and denied that they had illegally and falsely arrested Jack Conoly or falsely imprisoned him. They alleged that while no warrant was sworn out for the arrest of Jack Conoly, and no formal charges had been filed against him in the courts of the county, he was guilty of and connected with the crime charged.

The case proceeded to trial. From the evidence it appeared that for some time previous to the occasion of the alleged arrest of Jack Conoly the manager of the tobacco company's warehouse had been troubled with acts of vandalism and trespass on the company's premises, such as the breaking of warehouse windows, broken door locks, and petty thefts from the warehouse, and that on the day involved in the present case this manager, Lassiter, came with Duffy to the school Jack Conoly was attending, and informed the principal of the school that they desired to question certain boys, including Jack Conoly, and did question some of them relative to certain recent acts of depredation, including the breaking of a lock to a warehouse door and the entering of the warehouse and taking therefrom certain articles. There was evidence to the effect that Lassiter had suggested the trip to the schoolhouse and the questioning of Jack Conoly and the other boys relative to such acts, and that Lassiter had requested Duffy to accompany him. The evidence showed that when Duffy and Lassiter made the request of the school principal to question these boys, the principal procured tken' and they, with the principal, met in his office in the school-house, where they were questioned; that the boys knew Duffy was a police officer and were frightened when taken to and questioned in the office of the principal. Jack Conoly testified that Lassiter told Duffy to take the boys and put them in the car and carry them to see their parents; that they were accordingly placed in the automobile and carried by Lassiter and the policeman "up town;" that he (Jack) was scared, as he hadn't done anything wrong, and thought the policeman and Lassiter were going to lock them up; that they stated they were going to lock the boys up after their parents had been seen; that all of them rode to where Jack Conoly's father worked, and his father asked Duffy and Lassiter what charges they had against his boy, and they replied that they did not have any; that his father then asked Duffy and Lassiter to let his boy remain with him while they investigated the matter so that he could look into it, and that Lassiter told Jack Conoly's father. "No, if we let one get out, we will have to let them all;" and that all the boys were then carried away by the defendants.

Jack Conoly further testified that when Duffy and Lassiter carried him and the other boys to see "Mr. Smith and Mr. Allen, the fathers of some of the boys, " his father came up; that the Allen boy's father asked Duffy and Lassiter if they had any evidence that his boy had committed the offense of which the boys were accused by them; that when Duffy and Lassiter informed him that they did not have any evidence he caught hold of the back door of the car in which Duffy and Lassiter had the boys and said, "my boy is coming out of there;" that Lassiter reached back and caught the door and closed it; that Jack Conoly's father then said, "I want mine too;" that Duffy and Lassiter stated they would take the boys back to the school; and that they took them back to the school and let them out after having kept them out an hour or more.

The father of Jack Conoly testified that when Duffy and Lassiter brought the boys by his place of business he requested that they release his boy to him, and that Lassiter refused, and stated that he wanted to keep the boys and make "some investigation about it;" that the boys were frightened; that while Duffy and Lassiter stated they were not going to lock the boys up they drove off with them; that he "got to studying about the matter" and got in his automobile and followed and caught up with Duffy, Lassiter, and the boys, at theresidence of Mr. Allen; that Mr. Allen asked Lassiter if he had any proof on the boys and Lassiter said "No;" that Mr. Allen then reached and opened the door and said, "If that is the truth then my boy is coming' out of there;" that the witness then told Lassiter that he wanted his boy also; and that Lassiter grabbed the door and closed it and told the witness that he was not going to get him.

The principal of the school, R. F. Kelly, testified that he remembered the occasion when these boys were taken by him into his private office at the school at the request of Lassiter and Duffy, and were there questioned about a lock which had been broken at the plant of the defendant tobacco company; that he did not recall whether the boys "denied it or not;" that he did not recall "Jack Conoly saying anything about seeing the lock broken;" that Duffy and Lassiter "decided to take the boys to town for further questioning and for what specific reason I do not know;" that he understood they were taking the boys for further questioning, and Duffy told the boys to get in the car at the request of Lassiter; that he did not recall that the boys made any objection to going but they were unusually excited and knew that Duffy was a policeman; that Jack Conoly was excited to the extent that he cried; that "none of the boys suggested going down town, they were opposed to it;" that "they were very much scared and excited, and Mr. Duffy told them to get in the car and they obliged him;" and that he did not remember "that any of them said that he was not going but they were very reluctant."

Duffy testified that none of the boys objected to being taken from the school-house; that he told them he wanted to take them to see their parents and directed them to get in the car; that Lassiter suggested that he and the witness go to the school-house; that they were away from the schoolhouse with these boys about an hour; that "based on my investigation I believed this boy [Jack Conoly] was there, and based on that investigation I took him to his father to correct him." Lassiter testified that "As to what my motive in taking these boys from the schoolhouse was, " he told Duffy, while they were on their way to the schoolhouse to question the boys; that "I don't propose to arrest these little boys, " but that "if we could get them to admit that they did it we could take them to their parents and let them straighten it out;" that the boys raised no opposition and went quite willingly; that "I told them that I was taking them to their parents and the little Conoly boy said, 'My pap works at Tift's Tire Shop.'"

The testimony of the policeman and Lassiter relative to what happened after the boys were taken from the schoolhouse, and to the plaintiff demanding that his son be released and to their refusal to do so, was not contradictory of the evidence of the plaintiff in any essential part. The plaintiff's son denied participation in the damage to and...