Epperson v. First Nat. Bank

• Decision Date: 11 January 1923
• Docket Number: 6 Div. 776.
• Citation: 209 Ala. 12,95 So. 343
• Parties: EPPERSON v. FIRST NAT. BANK OF REFORM.
• Court: Alabama Supreme Court

95 So. 343

209 Ala. 12

EPPERSON v. FIRST NAT. BANK OF REFORM.

6 Div. 776.

Supreme Court of Alabama

January 11, 1923

Appeal from Circuit Court, Pickens County; R.I. Jones, Judge.

Action by L. J. Epperson against the First National Bank of Reform. From a judgment sustaining demurrers to the complaint plaintiff takes a nonsuit and appeals. Reversed and remanded.

C. C Nesmith and Edgar E. Garrison, both of Birmingham, for appellant.

Patton & Patton and M. Johnson, all of Carrollton, for appellee.

SAYRE J.

Epperson, the plaintiff, brought his action for damages against the First National Bank of Reform, joining counts for false imprisonment and for malicious prosecution. After the court had sustained demurrers to counts 3 and 5, plaintiff amended his complaint by striking the remaining counts, and then took a nonsuit, as the judgment entry recites, "on account of the adverse ruling of the court with respect to the demurrers to counts 3 and 5, and gives notice of appeal to the Supreme Court." The evident purpose of the plaintiff was to bring the rulings against his counts 3 and 5 into review in this court, as provided by section 3017 of the Code, and we find no sufficient reason for holding that he has failed of his purpose. True, the combined effect of the court's ruling and the plaintiff's motion to strike was to eliminate his complaint but plaintiff was in no worse case than he would have been had his complaint contained only the counts against which the demurrers were leveled, in which case he would have had-and so did have-the alternative of pleading over or appealing, as provided by section 3017 of the Code.

Counts 3 and 5 are for false imprisonment. The defendant is a corporation, and the allegation in both counts is that "defendant's servant, agent, or employee, while engaged within the line and scope of his employment unlawfully caused," etc. It is argued on behalf of the trial court's ruling that the allegation of the counts is not sufficient to charge defendant; that the action for damages for false imprisonment is in trespass (Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am. St. Rep. 32; O'Neal v. McKinna, 116 Ala. 606, 22 So. 905), and hence in such case it is necessary to allege further that the defendant corporation authorized, aided in the commission of, or ratified the wrongful act, citing Southern Bell Telephone Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930; Southern Ry. Co. v. Hanby, 166 Ala. 641, 52 So. 334. The sufficient answer to this argument, we think, is that...