Sanders v. Davis

• Decision Date: 21 November 1907
• Citation: 153 Ala. 375,44 So. 979
• Parties: SANDERS v. DAVIS.
• Court: Alabama Supreme Court

44 So. 979

153 Ala. 375

SANDERS v. DAVIS.

Supreme Court of Alabama

November 21, 1907

Appeal from City Court of Birmingham. C. W. Ferguson, Judge.

Action for false imprisonment by Ed Sanders against Thomas Davis. From a judgment for defendant, plaintiff appeals. Affirmed.

The pleadings are fully discussed in the opinion of the court. The evidence objected to is also set out in the opinion. At the request of the defendant the court gave the following charges to the jury: "(9) The question of whether the arrest was malicious and without probable cause does not depend upon whether the plaintiff was in fact guilty as charged, but whether the prosecutor acted in good faith, and on a reasonable appearance of cause he entertained a reasonable belief that the plaintiff, Ed Sanders, was guilty. The mere fact that the prosecution was abandoned, or nol pros'd, if you believe it was abandoned or nol pros'd, is not prima facie evidence of want of probable cause. (10) There is no evidence that the charge against plaintiff has been judicially investigated and the prosecution ended." "(12) Although you may believe that the defendant caused the arrest of the plaintiff from malice, yet you cannot find for the plaintiff, unless you are also reasonably satisfied that he had no reasonable cause to believe the plaintiff guilty of larceny." "(16) Before you can find against the defendant for false imprisonment, you must be reasonably satisfied that the arrest of the plaintiff was illegal." "(21) If you believe that the plaintiff knowingly and intentionally gave false testimony on his examination as a witness as to a material matter, then you have a right to reject his entire testimony." From a judgment for plaintiff, defendant appeals.

B. M Allen, for appellant.

H. K White and London & London, for appellee.

SIMPSON J.

This was a suit brought by the appellant against the appellee. Originally the complaint contained two counts, and the second count was subsequently amended. In that condition the case came before this court, and the court held that both counts, original and as amended, were in trespass for false imprisonment, and that there could be no recovery thereunder for a malicious prosecution. The defect pointed out by the court, as failing to make out a count for malicious prosecution, was that there was no allegation "of the issuance of process, properly describing it, and the plaintiff's arrest and imprisonment by virtue thereof." Davis v. Sanders, 133 Ala. 275, 278, 32 So. 499. Upon the second trial a third count was added by amendment, which still leaves out any averment of process and arrest thereunder, but, in lieu thereof, alleges that the defendant caused "the plaintiff to be arrested under a charge made verbally to a policeman of the city of Birmingham, Alabama, on the charge of larceny, which charge, before the commencement of this action, has been judicially investigated by the police court of Birmingham, and said prosecution ended and the plaintiff discharged." It is insisted by the appellee that the third count is still a count in trespass for false imprisonment, and not in case for malicious prosecution, because it does not allege that the plaintiff was arrested under process.

It is true that the case of Davis v. Sanders, supra, and others, hold that the absence of an allegation of the issuance of process is fatal to a count for malicious prosecution. Holly v. Carson, 39 Ala. 345. The reason which underlies these decisions is that, in order to constitute malicious prosecution, it is necessary to show that the party was arrested under regular valid judicial proceedings, by virtue of which he might have been legally convicted of the offense charged. The averments must show, first, a judicial proceeding; second, that it was instigated by the defendant; third, want of probable cause; fourth, malice; fifth, the termination of the judicial proceeding favorably to the plaintiff; and, sixth, the damage. 13 Ency. Pl. & Pr. 427. Section 5211 of the Code of 1896 authorizes an officer (including a policeman) to arrest, without a warrant, for a public offense committed within his presence or a breach of the peace threatened in his presence, "or when a felony has been committed, though not in his presence, by the person arrested, or when a felony has been committed, and he has reasonable cause to believe that the person arrested committed it, or when he has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony has not, in fact, been committed, or on a charge made, upon reasonable cause, that the person arrested has committed a felony." While it may not be accurate, in view of the above statute, 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.

In a case of action for false imprisonment, the defendant interposed a special plea, setting up an arrest by a policeman "having reasonable cause to believe that plaintiff was guilty." In support of the plea the argument was made that the arrest, having been made by the officer on reasonable cause, was a lawful arrest, and, the defendant having caused it, his liability was for malicious prosecution, and not for false imprisonment. This court said that the vice of the argument was in supposing that the rightfulness or lawfulness of the officer's act could be predicated upon the command or direction of another procuring him to do the act, and that "if he acts by the command or direction of another, and arrests and imprisons one upon a charge of a felony which has not been committed, or, if committed, the party commanding the arrest had no reasonable cause to believe was committed by the person arrested, the act is unlawful on the part of the officer himself, as well as the person who procured it." Rich v. McInerny, 103 Ala. 345, 355, 356, 15 So. 663, 49 Am. St. Rep. 32. While the expressions of the court in the foregoing case are not entirely clear to the writer, yet they seem to present the dilemma that if the officer acted on the command or direction of another, who had no "reasonable cause," then the arrest was illegal, and consequently false imprisonment was the remedy; while, on the other hand, if the party upon whose command or direction he acted had "reasonable cause," then the arrest would be legal and valid, so that false imprisonment would not lie, nor could the party causing the arrest be held for malicious prosecution, because he had "probable cause." If this be the reasoning of the court, then the result is that a party instigating an arrest without a warrant can be made liable only in an action of false imprisonment, and not in an action of malicious prosecution.

The court, in that case, was dealing only with an arrest made on the verbal direction of the defendant, and the defendant was seeking to justify the arrest on the ground that the policeman had reasonable cause to believe that the plaintiff was guilty. It is probable that, under the last clause of the statute, if a regular formal charge should be made by affidavit, stating that the affiant has reasonable cause to believe, etc., the fact of his really having, or not reasonable cause, would not be the test of the legality of the arrest. This court has held that, where a warrant of arrest was issued by a justice of the peace in one county, and sent to another, where the arrest was made without the indorsement by a justice of that county, as required by statute,...