Fowlkes v. Lewis, 43

• Court: Alabama Court of Appeals
• Writing for the Court: [10 Ala.App. 550] WALKER, P.J.
• Citation: 10 Ala.App. 543,65 So. 724
• Parties: FOWLKES v. LEWIS.
• Docket Number: 43
• Decision Date: 11 June 1914

65 So. 724

FOWLKES
v.
LEWIS.

10 Ala.App. 543

No. 43

Court of Appeals of Alabama

June 11, 1914

Appeal from Birmingham City Court; Charles A. Senn, Judge.

Action by Vivian C. Lewis against F.B. Fowlkes for malicious prosecution and false imprisonment. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The following charges were given for plaintiff:

(6) While the court has charged you that malice is a necessary ingredient of malicious prosecution, the court further charges you that in order to constitute malice it is not necessary that there should be any actual hate or ill will towards the party prosecuted, nor towards any one else but a malicious motive in law is any motive other than a bona fide purpose to enforce the criminal law, and malice may be inferred by the jury from a want of probable cause to believe that the person prosecuted was guilty of the offense for which he was prosecuted, if the jury are reasonably satisfied from the evidence that there was such want of probable cause

(7) Malice in law is not necessarily hate or ill will towards the person prosecuted, or towards any one else, but it may consist in any motive for bringing the prosecution other than a bona fide purpose to punish guilty parties

(5) The court charges the jury that, if you believe from the evidence that defendant in this case did maliciously, and without probable cause therefor, cause plaintiff to be arrested and imprisoned on a charge of trespass after warning, then they must find for the plaintiff, and assess such damages as in their sound judgment and discretion, you think shall be a just compensation for all the damages he suffered by reason and as a proximate consequence of plaintiff having been so arrested and imprisoned.

(2) The court charges the jury that, unless the jury believe from the evidence that all the facts known to defendant or which he could have ascertained by diligence were fully and truly laid before a reputable, practicing attorney, the advice of such an attorney is no protection to defendant.

The following charges were refused to defendant:

(14) Under the evidence in this case, plaintiff had no legal cause or good excuse to be or remain or enter upon Fowlkes' premises if the evidence reasonably satisfies you that he was duly warned either in writing or by word of mouth not to enter upon or leave the premises.

(E) If you believe from the evidence that Lewis was duly notified by Fowlkes or his agent to leave the premises, and that Lewis failed or refused to do so without legal cause or good excuse, your verdict should be for the defendant, and in this connection the court instructs you that legal cause or good excuse does not mean a valid, lawful cause or excuse--a cause or excuse that is good in law and such as would confer the right on the plaintiff to disobey the warning.

(F) If you believe from the evidence that Lewis was duly notified by Fowlkes or his agent not to enter on the premises, and that nevertheless Lewis thereafter wrongfully entered on the premises in violation of such warning, your verdict should be for defendant.

(G) Same as F, except that it is predicated upon being warned to leave the premises and failing to do so.

(2) The court charges the jury that probable cause is a state of mind, in this, that the facts are to be regarded from the point of view of the prosecutor. The question is not what the actual facts were, but what he had reason to believe they were.

(6) Neither malice nor probable cause can be inferred from the failure of the prosecution.

(13) An acquittal does not tend to establish want of probable cause.

(8) The action does not lie at the instance of the guilty party, and the right of recovery does not depend upon the innocence or acquittal of plaintiff, but upon such entire innocent conduct of plaintiff that there could be no reasonable ground for believing him guilty by defendant.

(11) Common report or information from others in connection with other circumstances tending to show guilt may rebut malice.

Stokely, Scrivner & Dominick and I.M. Engel, all of Birmingham, for appellant.

[10 Ala.App. 549] Harsh, Beddow & Fitts, of Birmingham, for appellee.

[10 Ala.App. 550] WALKER, P.J.

The action may be treated here as one for malicious prosecution, as the count charging false imprisonment was eliminated by the general affirmative charge as to that count given at the request of the defendant, the appellant here. It was undisputed that the defendant caused the plaintiff to be prosecuted criminally for an alleged trespass after warning, and that, before the commencement of this suit, that prosecution had resulted in the acquittal of the plaintiff. The theory on which that prosecution was instituted was that the plaintiff, who as a subcontractor under one Hicks, had been engaged in painting a house which Hicks had contracted to build for the defendant, after Hicks had abandoned his contract and defendant had taken charge of the house to have it completed by others employed by himself, and when he (the plaintiff) no longer had any right or good excuse to be or remain on the defendant's premises, entered or remained thereon after having been warned or ordered not to do so. Code, § 7827. The plaintiff testified to the effect that at the time he was arrested on the criminal charge made [10 Ala.App. 551] by the defendant he was engaged on the painting job for which he had contracted with Hicks; that he did not know that Hicks had abandoned his contract or that he had been dispossessed or ejected; and that he (the plaintiff) had not been notified or warned not to enter or remain upon the defendant's premises. The defendant, on the other hand, introduced evidence tending to prove that when the prosecution was instituted there was probable cause for him to believe that the plaintiff was guilty of the offense with which he was charged, and that the action he took was in pursuance of the advice of an attorney to whom all the facts were submitted.

We are not of opinion that the question asked the witness Martin, "What was said to him, if anything?" so plainly indicated that any evidence it might elicit was inadmissible for any purpose that the court was chargeable with error for overruling the objection to it, which was a general one, specifying no ground upon which it was made. Williams v. Anniston Electric & Gas Co., 164 Ala. 84, 51 So. 385. A statement by the witness as to something said by the defendant to the plaintiff, throwing light on the former's motive or purpose in instituting the prosecution, would not have been unresponsive to the question. At any rate, the court was entitled to be informed of the ground upon which the question was supposed to be objectionable.

As to objections made to questions after they had been answered, it is enough to say that they came too late for the court to be chargeable with error for overruling them. Birmingham Ry., Light & Power Co. v. Taylor, 152 Ala. 105, 44 So. 580.

It was not error for the court to sustain the plaintiff's objection to the question of the defendant to his witness Smith, "State whether or not the proceedings were taken out under the advice of Mr. Brown, the attorney." [10 Ala.App. 552] The matter called for was one for the jury to pass upon from the evidence adduced, and it was not for the witness to state the inference he drew from the facts to which he deposed. United States Cast Iron Pipe & Foundry Co. v. Granger, 162 Ala. 637, 50 So. 159. The facts as to getting the advice of a lawyer and as to what was thereafter done having been testified to fully, the jury were as well able as the witness to draw the proper inference from them. Whether or not the person who instituted the proceedings could properly have been permitted to state what influenced him in doing so is a question which is not presented for decision.

We are unable to discover how there could have been any relevancy in any answer that could have been expected to the question asked the defendant, "Did you or not notify Hornbuckle to quit the job?" especially in view of the fact that the witness disclaimed any knowledge of the plaintiff's having any connection with the person named in the question. Plainly the defendant was not entitled to prove a transaction he had with one who was a stranger to the plaintiff.

We are not of opinion that material evidence was called for by the question asked the defendant, "Tell the jury whether or not you could get undisturbed possession of your premises at the time this arrest was made." If the plaintiff had a right of action against the defendant for a malicious prosecution, it could not have been affected or impaired by the fact that, possibly because of some occurrence for which the plaintiff was not responsible, the defendant was unable to get undisturbed possession of his premises; nor could that fact justify or palliate the conduct of the defendant in instituting a criminal prosecution against the plaintiff without having probable cause to [65 So. 728] believe that he was guilty of the offense with which he was charged. The fact sought [10 Ala.App. 553] to be proved was not a material one, and the court did not err in sustaining the objection to the question.

Following a statement of the defendant's witness C.B. Brown that he attended the trial of the case in the criminal court and assisted in the prosecution, he was asked the following questions, objections to which were sustained:

"What was their defense to the prosecution?" "What evidence did they introduce on that subject to show there was no trespass after warning?" "State whether or not they sought to show by evidence that Lewis was not guilty because he was on the Fowlkes lot when he got the notice not to enter on it." "The evidence introduced by Lewis was, in substance

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