Piggly-Wiggly Alabama Co. v. Rickles

• Decision Date: 09 April 1925
• Docket Number: 6 Div. 261
• Citation: 212 Ala. 585,103 So. 860
• Parties: PIGGLY-WIGGLY ALABAMA CO. v. RICKLES.
• Court: Alabama Supreme Court

103 So. 860

212 Ala. 585

PIGGLY-WIGGLY ALABAMA CO. v. RICKLES.

6 Div. 261

Supreme Court of Alabama

April 9, 1925

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action for assault and battery and malicious prosecution by Minnie Lee Rickles against the Piggly-Wiggly Alabama Company. Judgment for plaintiff for $2,000, and defendant appeals. Affirmed.

Stokely Scrivner, Dominick & Smith and Frank Bainbridge, all of Birmingham, for appellant.

Black &amp Harris, J.C. Burton, and J.B. Ivey, all of Birmingham, for appellee.

SAYRE J.

Appellee declared in three counts: (1) For an assault and battery; (2) for false imprisonment; and (3) malicious prosecution. Defendant, appellant, had the general charge as to count 2 and the cause was submitted to the jury on counts 1 and 3.

In the first place it is insisted that defendant was entitled to the general affirmative instruction which was requested in separate charges upon the case as a whole, and upon each of counts 1 and 3. The corresponding assignments of error are grouped together in appellant's brief, but the supporting argument is addressed to the case as made by the court for malicious prosecution. It is evident that defendant was not entitled to the general charge as to the first count, for, while defendant or its agents would have had a right to use such force as may have been necessary to detain plaintiff until an officer could be called--if defendant was justified in charging her with larceny from its stock of goods--defendant's agents had no right to do more. Plaintiff's testimony was that defendant's agent, who preferred the charge against her, attempted to put his hand in her pocket, at the time charging her with lying as well as stealing. If this version of the facts was accepted by the jury as true, plaintiff proved a case under count 1, whatever may have been its conclusion as to count 3. As for the last-mentioned count, the argument is that the prosecution was ordered by Rice, president of the defendant corporation, upon facts which had been observed by the witness Chambless, and had been by him communicated to Rice. But the bill of exceptions fails to show that Chambless informed Rice of the immediately pertinent facts, so that the issue as to probable cause rested upon the evidence as to what had in fact occurred, not upon what Rice had been told, and, the evidence as to that being in conflict, was due for submission, in the first place at least, to the jury for decision.

Charge 60, requested by defendant, was properly refused because it laid stress upon the fact that plaintiff had been convicted in the recorder's court of the offense for which defendant had caused her to be prosecuted. This was the proper subject of the jury's consideration in connection with all relevant facts in evidence, but this charge called particular attention to the fact of plaintiff's conviction, singled it out, without the proper qualification. Sandlin v. Anders, 187 Ala. 474, 65 So. 376. We would feel more confidence in the result under consideration if we knew that the jury had in mind the fact that the conviction of plaintiff in the recorder's court made out a prima facie case for defendant. Ewing v. Sanford, 19 Ala. 605; Veid v. Roberts, 200 Ala. 576, 76 So 934. It may well be considered that the subsequent verdict of acquittal weighed too heavily in the mind of the jury. That verdict was due to be considered, was essential to plaintiff's recovery, as going...