Murphy v. McAdory
| Decision Date | 05 June 1913 |
| Parties | MURPHY v. McADORY et al. |
| Court | Alabama Supreme Court |
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 & Bell and J.Q. Smith, all of Birmingham, for appellant.
Gibson & Davis, of Birmingham, for appellees.
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, 354, 15 So. 663, 49 Am.St.Rep. 32; Fuqua v. Gambill, 140 Ala. 464, 37 So. 235.
There is nothing in the evidence here to indicate malice in the unlawful restraint of plaintiff by the sheriff or his deputy, certainly not as matter of law. For this reason also it cannot be held that the verdict was contrary to the law or the evidence.
The two special charges, if material, are not referred to in argument and need not be considered.
No error appearing, the judgment will be affirmed.
Affirmed
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Wilson v. Orr
... ... of probable cause must be proved to entitle plaintiff to ... recover, and the burden of proof as to both rested on ... plaintiff. Murphy v. McAdory, 183 Ala. 209, 62 So ... 706; King v. Gray, 189 Ala. 686, 66 So. 643; ... Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am ... St ... ...
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Sokol Bros. Furniture Co. v. Gate
...of false imprisonment, "except in aggravation of damages." Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am. St. Rep. 32; Murphy v. McAdory, 183 Ala. 209, 62 South 706. Malice does not necessarily consist of ill toward the person imprisoned. Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308, 30......
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Shell v. Pittman
... ... supra, also wrote for the ... court in Deason v. Gray, 192 Ala. 611, 69 So. 15, ... wherein a somewhat similar expression found in Murphy v ... McAdory, 183 Ala. 209, 62 So. 706, was fully explained, ... and wherein it was pointed out there was no intention of the ... court to hold ... ...
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Hill v. S. S. Kresge Co.
...and submit malice in his instructions covering such damages. Billingsley v. Kline Cloak Co., 196 Mo. App. 534, 196 S. W. 415; Murphy v. McAdory, 183 Ala. 209, 62 South. 706. But we do not think this latter rule is applicable to this case, for the reason that `plaintiff in his petition not o......