Fuqua v. Gambill

• Citation: 37 So. 235,140 Ala. 464
• Parties: FUQUA v. GAMBILL.
• Decision Date: 14 June 1904
• Court: Alabama Supreme Court

37 So. 235

140 Ala. 464

FUQUA v. GAMBILL.

Supreme Court of Alabama

June 14, 1904

Appeal from City Court of Birmingham; Chas. A. Senn, Judge.

Action by John E. Fuqua against A. A. Gambill. From a judgment for plaintiff for less than prayed for, he appeals. Reversed.

In each of the counts of the complaint the plaintiff claimed $2,500 damages. In each of the counts for false imprisonment it was alleged that the defendant "maliciously and without probable cause therefor" caused the plaintiff to be arrested and imprisoned. In the fifth count it was averred that the plaintiff was confined in the Birmingham city prison, "which is a foul den, filled with noxious odors and that he was thrown with disreputable persons confined in said prison," etc. The defendant pleaded the general issue and several special pleas. To the fourth special plea the plaintiff demurred upon the grounds: (1) It presents an immaterial issue. (2) It does not aver or show that J. J Boggan was not acting for or at the instance of the defendant. (3) That it does not show or aver that the ordinance for the violation of which the plaintiff was arrested is a valid law of the city of Birmingham. (4) That it does not aver or show that the defendant did not cause the warrant to be issued. The plaintiff introduced evidence tending to show that he was a milkman, and was arrested while delivering his milk in the city of Birmingham, and was imprisoned. While the plaintiff was being examined as a witness, he was asked the following question: "What was the condition of the prison in which you were placed as to cleanliness and odors?" The defendant objected to this question, because it called for irrelevant and immaterial testimony. The court sustained the objection, and the plaintiff excepted. It was shown that the plaintiff was arrested for the violation of an ordinance of the city prohibiting the sale of milk therein without first having taken out a license so to do. The ordinance alleged to have been violated was introduced in evidence. The court instructed the jury that the ordinance alleged to have been violated by the plaintiff, and which was introduced in evidence, was not a valid ordinance of the city of Birmingham, and did not impose upon the plaintiff any duty or obligation to take out and pay for the license to sell milk. The plaintiff requested the court to give to the jury the general affirmative charge in his behalf as to the first third, and fifth counts of the complaint, and duly excepted to the court refusing to give each of them as asked. The plaintiff requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(4) I charge you, gentlemen of the jury, that under the evidence in this case there was no law requiring the plaintiff to pay license, and if you believe from the evidence that the defendant caused the plaintiff to be arrested and imprisoned then your verdict must be for the plaintiff, and you would be authorized to assess such damages as the evidence may show to your reasonable satisfaction, the plaintiff justly entitled to, not exceeding the amount of the claim in the complaint. (5) I charge you, gentlemen of the jury, that if you believe from the evidence that J. J. Boggan was the defendant's deputy, and that the said J. J. Boggan arrested the plaintiff, and that at the time of making the arrest he was acting for and on behalf of the defendant within the scope of his authority; and if you further believe from the evidence that the warrant was not sworn out by some citizen of Birmingham, and that this was known to the defendant or to said Boggan, then I charge you that, even if there was a warrant in the hands of the said Boggan for the arrest of the plaintiff, this...