King v. Weaver Pants Corporation

• Decision Date: 14 April 1930
• Docket Number: 28585
• Citation: 127 So. 718,157 Miss. 77
• Court: Mississippi Supreme Court
• Parties: KING v. WEAVER PANTS CORPORATION et al

127 So. 718

157 Miss. 77

KING v. WEAVER PANTS CORPORATION et al

No. 28585

Supreme Court of Mississippi

April 14, 1930

Division B

1. FALSE IMPRISONMENT. Right of action. Discharged employee. Arrest on refusal to leave premises.

Discharged employee, arrested after refusal to leave premises, had no right of action for damages (Hemingway's Code 1927 section 1196). Where a person is employed by a corporation in premises inclosed, and where the corporation has a right to discharge, and does discharge the employee, and direct the employee to leave the premises, and he refuses to do so, this is a violation of section 1196, Hemingway's 1927 Code section 1394, Code of 1906; and if arrested and imprisoned on such charge by legal process served by an officer, the employee may not maintain a suit for damages for being so imprisoned, as such failure to leave the premises constitutes a violation of this section.

2. MALICIOUS PROSECUTION. Malice. Probable cause. Proof.

Plaintiff suing for malicious prosecution, must allege and prove malice and want of probable cause. In a suit for malicious prosecution, the plaintiff must allege and prove both malice and want of probable cause. Berry v. Priddy, 126 Miss. 125, 88 So. 517, cited.

3. FALSE IMPRISONMENT. Arrest under legal process. Right of action.

Suit for false imprisonment cannot be sustained, where arrest is by virtue of legal process duly issued by court or official with jurisdiction. A suit for false imprisonment cannot be sustained where the arrest is made by virtue of process legally sufficient in form and substance and duly issued by a court or official having jurisdiction to issue it, and the fact that such person was subsequently discharged does not give a right of action in such cases.

4. FALSE IMPRISONMENT. Peremptory instruction. Lawful arrest. Probable cause. Proof.

Peremptory instruction was warranted in suit for damages for making arrest and imprisonment, where undisputed proof established lawful arrest on probable cause. Where, in a civil suit for damages for making arrest and imprisonment thereunder, the proof is undisputed and shows a lawful arrest upon probable cause, a peremptory instrviction may be given against the plaintiff.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Alcorn county HON. C. P. LONG, Judge.

Suit by Mrs. N.E. King against the Weaver Pants Corporation and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Judgment affirmed.

T. A. Clark, of Iuka, for appellant.

In determining whether defendants were entitled to a directed verdict, every fact favorable to plaintiff, which evidence established either directly, or by reasonable inference, must be considered as proven.

Dean v. Brannon, 139 Miss. 312, 104 So. 173; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Wise v. Peugh, 140 Miss. 165, 106 So. 81; New Orleans, etc., R. R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; New Orleans, etc., R. R. Co. v. Martin, 140 Miss. 410, 105 So. 864; St. Louis, etc., R. R. Co. v. Nixon-Phillips, 141 Miss. 677, 105 So. 478; Yates v. Houston & Murry, 141 Miss. 881, 106 So. 110; Gulf, etc., R. R. v. Hales, 140 Miss. 829, 105 So. 458.

The gist of an action for false imprisonment is the unlawfulness of the imprisonment.

Cain v. Gray, 66 So. 643; Hotel Tutwiller, etc., v. Evans, 94 So. 120; Butry v. Wilhite, 94 So. 585; Standard Oil Co. v. Davis, 94 So. 754.

If malice and want of probable cause had been alleged in the declaration then it would have been necessary to have proven them.

Rich v. McInery, 15 So. 663.

Where there was no allegation of malice or want of probable cause, but the declaration is based solely on the unlawfulness of the imprisonment, it is not necessary to prove malice.

Central Iron & Coal Co. v. Wright, 101 So. 815; Smith v. Munch, 65 Minn. 266, 68 N.W. 19.

W. C. Sweat, and Conn & Conn, all of Corinth, for appellees.

In a suit for malicious prosecution, it is necessary for plaintiff, in order to be entitled to recover, to allege and prove both malice and want of probable cause.

Berry v. Priddy, 126. Miss. 125.

It is a complete defense to an action for false imprisonment that the arrest or detention was by virtue of process legally sufficient in form, and duly issued by a court or official having jurisdiction to issue it.

25 C. J. 473.

Under section 1196, Hemingway's Code 1927, plaintiff was a trespasser.

OPINION

Ethridge, P. J.

The appellant, Mrs. N.E. King, was plaintiff in the court below and filed a suit against the appellee for damages caused by the arrest and imprisonment of Mrs. King upon an affidavit filed by I. R. Longenecker, which charged that Mrs. King "did on or about the 11th day of January, 1929, in said district, county and state, wilfully and unlawfully remain upon the enclosed lands of the Weaver Pants Corporation, a corporation duly chartered and incorporated, after being requested by the affiant, then and there the agent of the said Weaver Pants Corporation, to depart therefrom. Against the peace and dignity of the State of Mississippi."

At the close of the evidence there was a peremptory instruction for the defendant. It appears that Mrs. King, prior to and on the 11th day of January, was working for the Weaver Pants Corporation as an employee, and that there had been some disturbance between the employees working with Mrs. King and herself, which had been reported to Mr. Longenecker, the superintendent of the plant. Mrs. King was sent for and came to the office where Longenecker was and was told, "Get your hat and coat and go home." She refused to do so and testified that she was ordered by him to go home, and that she said she would not do it, and asked him why, and he said, "No difference what it is; go home." Mrs. King testified: "I said 'I will not do it' . . . and I went back to work."

It further appears from the evidence that after Mrs. King refused to leave at the request of the superintendent her daughter was induced to go talk with her and ask her to go home, and that she did try to do so, but Mrs. King refused to leave the premises. Whereupon Mr. Longenecker, the superintendent, sent for the attorney of the company and had a consultation with him and was advised by him to have Mrs King arrested. Mr. Longenecker thereupon went to the office of the county prosecuting attorney and the county prosecuting attorney made out the affidavit above quoted and took it before a justice of the peace and...