Shirley v. McDonald

• Decision Date: 10 October 1929
• Docket Number: 6 Div. 374.
• Citation: 220 Ala. 50,124 So. 104
• Parties: SHIRLEY ET AL. v. MCDONALD.
• Court: Alabama Supreme Court

124 So. 104

220 Ala. 50

SHIRLEY ET AL. v. MCDONALD.

6 Div. 374.

Supreme Court of Alabama

October 10, 1929

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Action for damages for false imprisonment by Harmon McDonald against Thomas J. Shirley and another. From a judgment for plaintiff defendants appeal. Affirmed.

New trial, for defendant's ignorance of date of trial, held properly refused, where defendants' local counsel knew date. Code 1940, Tit. 7, § 249.

The amended complaint is as follows:

"(1) The plaintiff claims of the defendants the sum of ten thousand dollars as damages for that heretofore, to wit, on October 29, 1925, the defendant, Thomas J. Shirley, was sheriff of Jefferson county, Alabama; that on said date the duly authorized agent or deputy of said defendant Shirley W. S. Adams, acting within the line of his duty and in the scope of his authority as such agent or deputy of said defendant, came into Walker county, Alabama, and unlawfully arrested this plaintiff and carried him into Jefferson county and there imprisoned him in jail from, to wit October 29, 1925, to November 5, 1925, on a charge of bigamy; that the said unlawful arrest of the plaintiff as aforesaid was participated in by the said Thomas J Shirley, or the same was done in compliance with his orders, or the same was done with his knowledge and consent.

"Plaintiff alleges that, by reason of and as a proximate consequence of said unlawful arrest and imprisonment, he suffered great mental and physical pain, that he suffered much anguish and humiliation; that he lost much time from his work; that he was degraded in the estimation of his friends and the public generally; that he was a single man and had never been married; that he was carried through crowds of people under said charge; that the said unlawful arrest of the plaintiff as aforesaid was participated in by the said Thomas J. Shirley, or the same was done in compliance with his orders, or the same was done with his knowledge and consent.

"Plaintiff further alleges that at said time said Thomas J. Shirley was sheriff of Jefferson county, and that the United States Fidelity & Guaranty Company was surety on his said official bond, and that said unlawful arrest aforesaid was a breach of the official duty of said Thomas J. Shirley, as such sheriff; that the said unlawful arrest of the plaintiff as aforesaid was participated in by the said Thomas J. Shirley, or the same was done in compliance with his orders, or the same was done with his knowledge and consent.

"(2) Plaintiff claims of the defendants the sum of ten thousand dollars as damages for that heretofore, to wit, on October 29, 1925, the agent or deputy of the said deputy of the said Thomas J. Shirley, W. S. Adams, while acting within the scope of his authority as such deputy or agent, unlawfully arrested and imprisoned the plaintiff, from to wit, October 29, to, to wit, November 5, 1925, on a charge of bigamy, which arrest and imprisonment was without any warrant for the arrest of plaintiff, and without the plaintiff having committed any offense in the presence of said agent or deputy, and which said unlawful arrest was made in Walker county, Alabama; that the said unlawful arrest of the plaintiff as aforesaid was participated in by the said Thomas J. Shirley, or the same was done in compliance with his orders, or the same was done with his knowledge and consent.

"Plaintiff avers that at said time that said Thomas J. Shirley was sheriff of Jefferson county, and that the United States Fidelity & Guaranty Company, a corporation, was surety on his said official bond; and he further avers that such unlawful arrest of the plaintiff by the said agent of the said Shirley was a breach of the official duty of the said Shirley under his bond; that the said unlawful arrest of the plaintiff as aforesaid was participated in by the said Thomas J. Shirley, or the same was done in compliance with his orders, or the same was done with his knowledge and consent.

"Plaintiff avers that, by reason of and as a proximate consequence of said unlawful arrest, he was caused to suffer great mental pain and anguish and to suffer much physical pain and discomfort; that he was carried through crowds under arrest, and that he was degraded and humiliated and lost much time from his work; that the said unlawful arrest of the plaintiff as aforesaid was participated in by the said Thomas J. Shirley, or the same was done in compliance with his orders, or the same was done with his knowledge and consent.

"(3) Plaintiff claims of the defendants the sum of ten thousand dollars as damages, for that heretofore, to wit, on October 29, 1925, that Thomas J. Shirley was sheriff of Jefferson county, and that at said time he had in his employ as his deputy an agent, one W. S. Adams, and that while said W. S. Adams was acting within the line of his duty as such deputy and agent, and within the scope of his authority as such deputy and agent, he came out of Jefferson county, Alabama, into Walker county, Alabama, and unlawfully arrested the plaintiff and restrained him of his liberty, and held him in custody under an alleged charge of bigamy, which he said had been committed in the state of Florida. Plaintiff alleges that said deputy or agent did not have any warrant of arrest for this plaintiff, and that this plaintiff had committed no offense in the presence of said deputy, but nevertheless the said deputy took charge of the person of the plaintiff, and against his will forcibly carried him to Birmingham, Jefferson county, and there placed him in jail and held him there from, to wit, October 29, 1925, to, to wit, November 3d, and then caused him to be carried out of the state of Alabama and into the state of Florida, where he was held in jail for two days. The plaintiff alleges that in truth and in fact there was no charge of any kind against this plaintiff; that the plaintiff is and was a single man, and never had been married; that he was reared in Marion county, Alabama, and had never before been in the state of Florida, which fact was made known to said agent before the said agent or deputy unlawfully arrested him; that the said unlawful arrest of the plaintiff as aforesaid was participated in by the said Thomas J. Shirley, or the same was done in compliance with his orders, or the same was done with his knowledge and consent.

"Plaintiff avers that at said time Thomas J. Shirley was sheriff of Jefferson county, Alabama, and the United States Fidelity & Guaranty Company was surety on his official bond, and the said unlawful arrest and imprisonment was a breach of the official duty of said Thomas J. Shirley, under his said official bond; that the said unlawful arrest of the plaintiff as aforesaid was participated in by the said Thomas J. Shirley, or the same was done in compliance with his orders, or the same was done with his knowledge and consent.

"Plaintiff alleges that by reason of and as a proximate consequence of said unlawful arrest and imprisonment that he was caused to suffer much physical pain and anguish and much mental pain and discomfort, and that he was thrown in jail among felons and greatly humiliated and degraded; that he was and is a single man, and the charge of bigamy reflected on his character and standing; that he lost valuable time from his

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