Prince v. Bryant, 3 Div. 962

CourtSupreme Court of Alabama
Writing for the CourtLAWSON; LIVINGSTON
Citation274 Ala. 134,145 So.2d 837
PartiesBessie Mae PRINCE v. B. G. BRYANT.
Docket Number3 Div. 962
Decision Date18 October 1962

Page 837

145 So.2d 837
274 Ala. 134
Bessie Mae PRINCE
v.
B. G. BRYANT.
3 Div. 962.
Supreme Court of Alabama.
Oct. 18, 1962.

[274 Ala. 135]

Page 838

Clifford J. Durr, Montgomery, for appellant.

Walter J. Knabe and Rodney R. Steele, Montgomery, for appellee.

LAWSON, Justice.

This suit was filed in the Circuit Court of Montgomery County by Bessie Mae Prince against B. G. Bryant and B. G. Smith, who were police officers of the City of Montgomery.

The complaint contained three counts. In Count I the plaintiff sought damages of both the defendants for false imprisonment.

Count II was against the defendant Bryant and read as follows:

'Plaintiff claims of the Defendant, B. G. Bryant, the sum of $2500.00 damages for maliciously and without probable cause therefor, arresting Plaintiff on or about the 21st day of August, 1959, and causing the Plaintiff to be prosecuted in the Recorder's Court of the City of Montgomery, Alabama, on an alleged charge of disorderly conduct, without valid warrant or information, which alleged charge, before the commencement of this action, has been judicially investigated and said prosecution ended and the plaintiff discharged.'

Count III was against the defendant Bryant for an assault and battery.

Smith was stricken as a party defendant. Demurrer to Count II was sustained. Bryant then interposed pleas of the general issue to Counts I and III and a special plea to Count I which, in substance, alleged that plaintiff was arrested by the defendant for an offense committed in his presence and while in the execution of his duties as a police officer of the City of Montgomery.

There was a jury verdict in favor of the defendant, Bryant. Judgment was in accord with the verdict. Plaintiff's motion for new trial having been overruled, she has appealed to this court.

The first argued assignment of error is to the effect that the trial court erred in sustaining defendant Bryant's demurrer to Count II of the complaint.

Count II was designed, no doubt, as an action on the case for malicious prosecution, but it is insufficient for that purpose because it avers, in substance, that the prosecution of the plaintiff followed an arrest not under process issued by lawful authority.

Page 839

Most of our cases, as well as those of the Court of Appeals, which have considered the question have held or observed that a count in case for malicious prosecution which avers the arrest of the plaintiff by the defendant or at the latter's instigation must contain averments showing that the arrest was under process issued by lawful authority. Sheppard v. Furniss, 19 Ala. 760; Williams v. Ivey, 37 Ala. 244; Holly v. Carson, 39 Ala. 345; Davis v. Sanders, 133 Ala. 275, 32 So. 499; Bryant v. Hartford Fire Ins. Co., 230 Ala. 80, 159 So. 685; Grissom v. Lawler, 10 Ala.App. 540, 65 So. 705; Casino Restaurant, Inc., v. McWhorter, 35 Ala.App. 332, 46 So.2d 582. See Western Union Telegraph Co. v. Thompson, 5 Cir., 144 F. 578.

In Sanders v. Davis, 153 Ala. 375, 380-381, 44 So. 979, it was observed:

'* * * While it may not be accurate, in view of the above statute [ § 5211, Code 1896], to say that in every case it is necessary, in order to count on malicious prosecution, to aver the issuance of process and arrest thereunder, yet the averments must be such as to show a legal arrest as the commencement of a valid judicial proceeding.'

As to the statement just quoted, it is sufficient to point out that Count II does not show 'a legal arrest as the commencement of a valid judicial proceeding.'

[274 Ala. 137] In Sears, Roebuck & Co. v. Alexander, 252 Ala. 122, 39 So.2d 570, we held good as against demurrer a count charging the malicious prosecution of plaintiff in the Recorder's Court of the City of Birmingham for the violation of an ordinance of that City, which count did not even aver the arrest of the plaintiff on the charge. We pointed out that an arrest was not necessary to the commencement of the valid judicial proceeding which was begun in the recorder's court in such a manner as to be legally sufficient to support a judgment of conviction. The holding in that case has no application here, for Count II alleges an arrest of the plaintiff by the defendant.

Count II may be good as a count in trespass for false imprisonment although it does not actually allege that imprisonment followed the arrest. An...

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7 practice notes
  • Gilmer v. Salter, 3 Div. 446
    • United States
    • Supreme Court of Alabama
    • 15 Mayo 1970
    ...Times Co. v. Sullivan, 273 Ala. 656, 144 So.2d 25, rev'd on other grounds, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; Prince v. Bryant, 274 Ala. 134, 145 So.2d 837; Locklear v. Nash, 275 Ala. 95, 152 So.2d 421; Deamer v. Evans, 278 Ala. 35, 175 So.2d Likewise charge 3 is improper because o......
  • Chambers v. Culver
    • United States
    • Supreme Court of Alabama
    • 18 Enero 1973
    ...Times Co. v. Sullivan, 273 Ala. 656, 144 So.2d 25, rev'd on other grounds, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; Prince v. Bryant, 274 Ala. 134, 145 So.2d 837; Locklear v. Nash, 275 Ala. 95, 152 So.2d 421; Deamer v. Evans, 278 Ala. 35, 175 So.2d 466; Barnes v. Haney, 280 Ala. 39, 189 ......
  • Associates Inv. Co. v. Hamm, 1 Div. 401
    • United States
    • Supreme Court of Alabama
    • 26 Junio 1969
    ...164; Herrington v. Hudson, 262 Ala. 510, 80 So.2d 519; Firestone Tire & Rubber Co. v. Nixon, 264 Ala. 433, 87 So.2d 829; Prince v. Bryant, 274 Ala. 134, 145 So.2d 837; Atlanta Life Ins. Co. v. Stanley, 276 Ala. 642, 165 So.2d 731; Hatcher v. Camp, 279 Ala. 475, 187 So.2d Refused Charge 13 i......
  • Universal C. I. T. Credit Corp. v. Weeks, 4 Div. 19
    • United States
    • Alabama Court of Civil Appeals
    • 23 Diciembre 1970
    ...at the [46 Ala.App. 375] time it was given, and thus failed to make such available for assignment as error on appeal. Prince v. Bryant, 274 Ala. 134, 145 So.2d 837; Goodwin v. Hall, 275 Ala. 297, 154 So.2d Appellant's written charges Numbers 1 and 2, refused by the court, were the affirmati......
  • Request a trial to view additional results
7 cases
  • Gilmer v. Salter, 3 Div. 446
    • United States
    • Supreme Court of Alabama
    • 15 Mayo 1970
    ...Times Co. v. Sullivan, 273 Ala. 656, 144 So.2d 25, rev'd on other grounds, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; Prince v. Bryant, 274 Ala. 134, 145 So.2d 837; Locklear v. Nash, 275 Ala. 95, 152 So.2d 421; Deamer v. Evans, 278 Ala. 35, 175 So.2d Likewise charge 3 is improper because o......
  • Chambers v. Culver
    • United States
    • Supreme Court of Alabama
    • 18 Enero 1973
    ...Times Co. v. Sullivan, 273 Ala. 656, 144 So.2d 25, rev'd on other grounds, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; Prince v. Bryant, 274 Ala. 134, 145 So.2d 837; Locklear v. Nash, 275 Ala. 95, 152 So.2d 421; Deamer v. Evans, 278 Ala. 35, 175 So.2d 466; Barnes v. Haney, 280 Ala. 39, 189 ......
  • Associates Inv. Co. v. Hamm, 1 Div. 401
    • United States
    • Supreme Court of Alabama
    • 26 Junio 1969
    ...164; Herrington v. Hudson, 262 Ala. 510, 80 So.2d 519; Firestone Tire & Rubber Co. v. Nixon, 264 Ala. 433, 87 So.2d 829; Prince v. Bryant, 274 Ala. 134, 145 So.2d 837; Atlanta Life Ins. Co. v. Stanley, 276 Ala. 642, 165 So.2d 731; Hatcher v. Camp, 279 Ala. 475, 187 So.2d Refused Charge 13 i......
  • Universal C. I. T. Credit Corp. v. Weeks, 4 Div. 19
    • United States
    • Alabama Court of Civil Appeals
    • 23 Diciembre 1970
    ...at the [46 Ala.App. 375] time it was given, and thus failed to make such available for assignment as error on appeal. Prince v. Bryant, 274 Ala. 134, 145 So.2d 837; Goodwin v. Hall, 275 Ala. 297, 154 So.2d Appellant's written charges Numbers 1 and 2, refused by the court, were the affirmati......
  • Request a trial to view additional results

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