Murphy v. McAdory

• Decision Date: 05 June 1913
• Citation: Murphy v. McAdory, 183 Ala. 209, 62 So. 706 (Ala. 1913)
• Parties: MURPHY v. McADORY et al.
• Court: Alabama Supreme Court

62 So. 706

183 Ala. 209

MURPHY v. McADORY et al.

Supreme Court of Alabama

June 5, 1913

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by Philip Murphy against Walter K. McAdory and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Allen &amp Bell and J.Q. Smith, all of Birmingham, for appellant.

Gibson & Davis, of Birmingham, for appellees.

SOMERVILLE J.

Conceding without deciding, that the facts in evidence show an unlawful restraint of plaintiff's person for which an action lies against the sheriff and his bondsmen, yet the general affirmative charge as requested by plaintiff was properly refused to him for two reasons:

1. The action is against the sheriff and his bondsmen jointly and contains three counts, the first two of which are respectively, for an unlawful imprisonment and for an assault and battery by the defendants. Obviously on these two counts the evidence makes no case against the bondsman, who was liable, if at all, only by contract for the breach of the sheriff's official bond. Hence the charge requested should have been restricted to the third count, which is for breach of the bond, or else restricted to a recovery against the sheriff alone.

2. The first and third counts, grounded on a false imprisonment declare that the act was maliciously done. While malice is not an essential element of false imprisonment, yet, when the offense is thus characterized in the complaint, malice must be proved or the case fails. Rich v. McInerny, 103 Ala. 345,...