Orr v. Burleson

• Decision Date: 16 March 1926
• Docket Number: 8 Div. 764
• Citation: 214 Ala. 257,107 So. 825
• Parties: ORR v. BURLESON et al.
• Court: Alabama Supreme Court

107 So. 825

214 Ala. 257

ORR v. BURLESON et al.

8 Div. 764

Supreme Court of Alabama

March 16, 1926

Appeal from Circuit Court, Morgan County; J.E. Horton, Judge.

Action by J.M. Orr against R.A. Burleson and the Louisville &amp Nashville Railroad Company. From a judgment for defendants plaintiff appeals. Affirmed.

Wert &amp Hutson, of Decatur, for appellant.

Eyster & Eyster, of Albany, and Jones & Thomas, of Montgomery, for appellees.

SAYRE J.

An action of false imprisonment by appellant against R.A Burleson and the Louisville & Nashville Railroad Company alleging in varying phrase in different counts that the defendants did unlawfully, or unlawfully and maliciously, cause plaintiff to be arrested and imprisoned.

The trial court gave the general affirmative charge for defendant Louisville & Nashville Railroad Company, and this action of the court constitutes the main cause of complaint on this appeal. Defendant's employees, shop hands, at Albany had gone out on a strike. The Governor, acting under the authority of section 7398 of the Code of 1907 and the act approved September 19, 1919 (Acts 1919, p. 467 et. seq.), had sent several companies of the Alabama National Guard to the scene under the command of the defendant Burleson. In what was known as the strike area members of the organization were conservators of the peace. They were housed in part upon the property of the Louisville & Nashville Railroad Company. Headquarters were established in a building the property of the company. About midnight, September 26-27, 1922, dynamite was exploded under a passenger train being operated over the track of the defendant railroad. Plaintiff had been under surveillance for some time, and, by reason of things observed 10 to 30 minutes in advance of the explosion, guardsmen took plaintiff in charge, took him to headquarters, where he was subjected to some examination by the officer in charge, after which he was detained until about 5 o'clock of the next afternoon, when defendant Burleson ordered his discharge. Complicity of defendant railroad company is sought to be established through one Speer, who had been sent to Albany by the adjutant general on the requisition of the officer in command. His designation was traceable to the Louisville &amp Nashville Company in this way only: He was an employee of the N.L. Pierce National Detective Agency, which had been employed by the company to send two detectives to Albany, and it may be safely assumed that his mission was to aid in the protection of the company's property. But he was a detective. His business was to get information. He had no real or apparent authority to make an arrest. Smith v. S.H. Kress & Co., 98 So. 378, 210 Ala. 438. The evidence is undisputed to the effect that he was a civil agent under the control and direction of the military authorities, and that he had no part, immediate or remote, in arresting or causing the arrest of plaintiff. His connection with that affair was that he was at headquarters when plaintiff was taken there for examination, that Speer asked him some questions about the sale of explosives--this evidently because plaintiff kept a store in the neighborhood, and there was evidence from which the jury might have inferred that the dynamite placed on defendant's track had, within a half hour, been carried from plaintiff's store--and that, according to plaintiff's testimony, Speer sent for plaintiff next morning, said to him that "We have to do such things to see what we can find out. Don't have no hard feelings at anybody nor the L. & N. Railroad Company" --and then sent him back to the military camp. The material parts of all this were denied; but, wholly apart from any effect to be assigned to the denial, the evidence failed to provide sufficient ground on which to base a finding that the company was responsible for plaintiff's detention--that being the only ground upon which plaintiff would justify a possible verdict against the company--for, even though Speer was present and took part in the interrogation of plaintiff immediately after his arrest, the evidence was undisputed nevertheless that he had no authority in the premises, and that plaintiff was held...