Hotel Tutwiler Operating Co. v. Evans

• Decision Date: 23 June 1922
• Docket Number: 6 Div. 558.
• Citation: 208 Ala. 252,94 So. 120
• Court: Alabama Supreme Court
• Parties: HOTEL TUTWILER OPERATING CO. v. EVANS.

94 So. 120

208 Ala. 252

HOTEL TUTWILER OPERATING CO. v. EVANS.

6 Div. 558.

Supreme Court of Alabama

June 23, 1922

Rehearing Denied Oct. 12, 1922.

Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge.

Action by Virgil V. Evans against the Hotel Tutwiler Operating Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Tillman Bradley & Baldwin and F. M. Brown, all of Birmingham, for appellant.

London Yancey & Brower, of Birmingham, for appellee.

SOMERVILLE J.

The motion to strike the bill of exceptions is based on the failure of the trial judge to indorse upon the bill the true date of its presentation to him, showing a presentation within 90 days from the date on which the judgment was rendered; and this insistence is based on the contention that the act of September 25, 1915 (Gen. Acts 1915, p. 816) amending section 3022 of the Code of 1907, is in violation of section 45 of the Constitution, in that it contains two subjects, one of which is not expressed in the title, the argument being, in particular, that the provision authorizing the filing of the bill with the clerk in lieu of a presentation to the trial judge, in the contingencies specified, is not indicated by the title, and is not germane thereto. This objection to the validity of the act has been recently considered by this court, and the validity of the act was sustained in the case of Sallie J. Smith v. Birmingham Realty Co. (6th Div. 557) 94 So. 117.

The appellant in this case has followed the provisions of the act, and, the act being valid, the motion to strike the bill of exceptions must be overruled.

The unlawfulness of the imprisonment is the gist of an action for false imprisonment. Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am. St. Rep. 32; King v. Gray, 189 Ala. 686, 66 So. 643. And "detention of a person by another with force, or against the will of the person detained, is an imprisonment in law; and, if such detention is not rightful, it is unlawful." C. of G. Ry. Co. v. Carlock, 196 Ala. 659, 72 So. 261.

Each of the three counts of the complaint states a cause of action, and the demurrers, the grounds of which were general only, were properly overruled. Strain v. Irwin, 195 Ala. 414, 70 So. 734, and authorities supra. Appellant's contention that the third count is fatally defective, even though the first and second are not, because it charges a "wrongful" instead of an "unlawful" arrest and imprisonment, cannot be sustained. A wrongful arrest or imprisonment is not rightful; and, if not rightful, it is necessarily unlawful. C. of G. Ry. Co. v. Carlock, supra.

The questions propounded to the witness Almon called for mere conclusions on his part, and were properly excluded. The witness stated the facts, and his impression or opinion as to their significance was not proper for the consideration of the jury, who, could draw their own conclusions from all the evidence before them. It may be that the admission of such conclusions, their validity being subject to impeachment on cross-examination, would not be held as reversible error, but the court cannot be put in error for rejecting them.

The special instruction given to the jury at the instance of plaintiff was clearly and vitally erroneous, since it directed a verdict for the plaintiff upon the predicate merely of his arrest by an agent or servant of defendant, and took away from the jury the essential question of the agent's authority, on the one hand, or of the principal's ratification, on the other.

On this question, and...