Fire Ass'n of Philadelphia v. Fleming

• Decision Date: 09 May 1887
• Citation: 3 S.E. 420,78 Ga. 733
• Parties: FIRE ASS'N OF PHILADELPHIA and others v. FLEMMING.
• Court: Georgia Supreme Court

3 S.E. 420

78 Ga. 733

FIRE ASS'N OF PHILADELPHIA and others v. FLEMMING.

Supreme Court of Georgia

May 9, 1887

Error to superior court, Richmond county; RONEY, Judge.

Frank H. Miller, for plaintiff in error.

William H. Flemming and Foster & Lamar, for defendant.

HALL J.

Flemming was a detective in the police service of the city of Augusta. This defendant, with other companies, had effected insurance upon the house of a person by the name of Goss. That house was burned. They believed, or affected to believe, that it was consumed for the purpose of getting the insurance, and they resisted the payment of the loss upon that ground. Flemming, who, according to the terms of his employment by the city of Augusta, could take no reward for such service was employed to work up the case. He did work it up to a certain point; and then he left the city of Augusta and removed to Savannah, where he changed his business, ceasing to act as a policeman or detective. At this point another detective, named Bagby, from Atlanta, took charge of the case. While the investigation of this alleged arson was pending before the grand jury, Mr. Flemming came from his home in Savannah to Augusta, and, after having attended to the matter that called him there, he started to return. Mr Carroll, who had been the counsel for this company, informed Bagby that he wanted Mr. Flemming before the grand jury, and asked him to go and stop him. Bagby found Flemming at the depot, about to leave, and he said to him, "I want you in that Goss case," or something to that effect. Flemming considered it an arrest by Bagby. No authority to make the arrest was shown or demanded. Flemming expressed regret, saying he had paid his fare to the city of Savannah, and was anxious to get there. Bagby went to the ticket agent, who refunded Flemming's fare. Flemming then accompanied Bagby down the street to the police head-quarters. On the way, Flemming said to a person he met, "I am under arrest." Before reaching the police head-quarters, he met Mr. Carroll, who had been in conference with him about the arson case frequently before this time. Flemming mentioned to him that he was disappointed in not going to Savannah. Mr. Carroll told him that he would make that all right; but nothing was said as to his having been arrested by Bagby. When he got to police head-quarters, however, he informed the chief of police that he was under arrest; and Bagby said, "Yes." Christian, the chief of police, said, "I will be responsible for him." Bagby then went up stairs in the same building to see the solicitor general, from whom he procured a subp na, which was immediately served upon Flemming; and after the subp na was served upon him, he went at large. Flemming did not think, until after all this had occurred, to ask by what authority he was arrested. He sued these corporations, and obtained a verdict of $1,000 for malicious arrest and false imprisonment. A motion for new trial was made upon a great many grounds, and was overruled. Upon some of the grounds of the motion, we think it should have been granted; but, before examining the special grounds, we prefer to take a wider and larger view of this case.

1. The provisions of law relating to malicious arrest are intended to protect and remunerate those who have been wantonly abused under color of authority. If such authority is assumed for purposes of oppression and wrong, such action should be upheld. But we capitally doubt whether any case was made here at all; and we are not very well satisfied that any damage was incurred on account of the action complained of. It is clear that if any arrest was made at all, or if there was any compulsory detention of the party alleged to have been arrested, it was constructive rather than an actual arrest and detention. It certainly does not appear, from the beginning to the end of this transaction, that any arrest was ever contemplated by Mr. Bagby; and if he did make an arrest it was a trespass for which he alone was personally responsible. Flemming had never been charged with any crime in connection with this burning that the grand jury was investigating; and he knew, or ought to have known, that he was wanted only for one purpose, which was to testify. He had never disobeyed any subp na, because he had never been served with one to appear and testify before the grand jury, and was therefore not in contempt of any process of the court. If Bagby acted in this way, he was acting beyond the scope of his instructions and the business he was employed to transact. We do not very clearly perceive how his conduct in this matter was ratified by this company, or any of its agents. Flemming was kept away from his home only a single day. He was not treated with any indignity, or placed under any unusual restraint, even for a small portion of that day. It was not shown that his character was in the least affected; and we certainly think that, if this company was liable at all, the...