King v. Gray
| Decision Date | 07 November 1914 |
| Docket Number | 687 |
| Citation | 66 So. 643,189 Ala. 686 |
| Parties | KING v. GRAY et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.
Action by Dan L. King against John M. Gray and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.
Davis & Fite, of Jasper, for appellant.
Ray & Cooner and Bankhead & Bankhead, of Jasper, for appellees.
DE GRAFFENRIED, J.
The first and third counts of the complaint were for unlawful imprisonment, and the other counts were for a malicious prosecution. In the first and third counts the plaintiff charged that the defendants "maliciously" and without probable cause arrested and imprisoned him.
In an action for false imprisonment, if the complaint charges that the imprisonment was "malicious" and without probable cause, instead of charging that it was "unlawful" and without probable cause, both the "malice" and the want of probable cause must be proven. Rich v. McInerny, 103 Ala. 345, 15 So. 663 49 Am.St.Rep. 32.
"To maintain an action for false imprisonment, it is not essential that the arrest and imprisonment should have been obtained by malice and without probable cause; but, when these elements are averred in the complaint, they must be shown by the evidence to have existed, before the plaintiff is entitled to a recovery." Rich v. McInerny, supra.
The gist of an action for unlawful imprisonment is the "unlawfulness" of the imprisonment. Rich v McInerny, supra.
It will be seen from the above that in counts 1 and 3 in charging that the imprisonment was "malicious," instead of that it was "unlawful," the plaintiff assumed a burden which the gist or substance of his action did not require of him. Rich v. McInerny, supra.
1. It appears from the bill of exceptions that after all of the evidence had been given to the jury, and after counsel on both sides had concluded their arguments to the jury, and after the trial judge had completed his oral charge to the jury, and after he had passed on the written charges which counsel had requested him to give to the jury, but while the jury was still in the box and before they had retired counsel for plaintiff asked leave of the court to be permitted to strike the word "malicious" from the first and third counts of the complaint and to be allowed to substitute therefor the word "unlawful." This amendment would simply have relieved the plaintiff of the needless burden of proving, as a prerequisite to his recovery, that the imprisonment was "malicious" instead of merely unlawful.
2. Undoubtedly the offer to amend came at a very late stage of the trial, viz., just before the jury retired. This situation may have called for terms from the trial judge, but it did not destroy the right of the plaintiff to his amendment. The trial judge, it is...
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