Sloss-Sheffield Steel & Iron Co. v. Devaney

Decision Date28 November 1912
Citation60 So. 990,7 Ala.App. 457
PartiesSLOSS-SHEFFIELD STEEL & IRON CO. v. DEVANEY.
CourtAlabama Court of Appeals

Rehearing Denied Jan. 21, 1913.

Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.

Action by J. A. Devaney against the Sloss-Sheffield Steel & Iron Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Bankhead & Bankhead, of Jasper, for appellant.

J. D. Acuff and R. A. Cooner, both of Jasper for appellee.

PELHAM J.

The appellee brought his suit in the trial court, claiming damages for false imprisonment and malicious prosecution. The first, third, fourth, and fifth counts, and counts designated as "A" and "B" are for false imprisonment. Count No. 2 is for malicious prosecution.

The appellant, among other charges, requested the general charge on count No. 2, and urges the point here that the court below erred in the refusal to give this instruction because of the entire absence of proof showing a termination of the prosecution or judicial proceedings the foundation of the allegations of the second count of the complaint upon which the right to recover is based. The appellee's counsel, in answering this contention, cite us to the evidence of the plaintiff, J. A. Devaney, set out in the bill of exceptions. We have examined the testimony of this witness with much care to find the necessary evidence showing that the proceeding had been determined, but fail to find anything in the testimony of this or any other witness set out in the transcript that is susceptible of such a construction. The witness Devaney testified on this subject "I attended the Law & Equity Court in April, 1909. I did not plead to any action in that court of trespass after warning. I was tried in that court on a charge of that kind. I never saw any papers at the time. I never saw any papers at the time; yes, sir, that is the papers I am pretty sure." Set out in connection with the testimony of this witness is the warrant and affidavit charging a trespass and also an indorsement showing the return of the officer committing the accused party (plaintiff) to jail. The bond upon which the accused secured his release from imprisonment and binding him to appear from term to term before the Walker county law and equity court, is also set out, but nothing to show that the accused had been acquitted or discharged or that the prosecution had been determined favorably to him, or otherwise for that matter. To entitle the plaintiff to recover on the second count of the complaint, it was necessary to show, not only that the prosecution for trespass after warning was instituted without probable cause and that it was malicious, but also that the prosecution had been determined. Southern Car Co. v. Adams, 131 Ala. 147, 32 So. 503; McLeod v. McLeod, 75 Ala. 483; Stewart v. Blair, 171 Ala. 147, 54 So. 506; Sanders v. Davis, 153 Ala. 375, 44 So. 979.

The motions to strike certain allegations in the counts for false imprisonment are not presented in such a way as to be reviewable here. Lay v. Postal Telegraph Co., 171 Ala. 172, 54 So. 529; Harrison v. Ala. Mid. Ry. Co., 144 Ala. 246, 40 So. 394, 6 Ann. Cas. 804; Marsicano v. Phillips, 60 So. 553.

The demurrers attacking these counts of the complaint on the ground that they set up claims for damages not recoverable are not well taken. Hayes v. Miller, 150 Ala. 621 43 So. 818, 11 L. R. A. (N. S.) 748, 124 Am. St. Rep. 93; Woodstock Iron Co. v. Stockdale, 143 Ala. 550, 39 So. 335, 5 Ann. Cas. 578. It was held in Stewart v. Blair, 171 Ala. 147, 54 So. 506, which was a suit for malicious prosecution, that it was proper to...

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4 cases
  • Brooks v. Super Service, Inc.
    • United States
    • Mississippi Supreme Court
    • December 12, 1938
    ...N.Y.S. 101, 235 A.D. 246; Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316; Birmingham Bottling Co. v. Morgan, 69 So. 85; Schloss-Sheffield v. Devany, 60 So. 990. W. Snyder, and W. H. Watkins, Jr., both of Jackson, for appellee, on suggestion of error. The court, in its written opinion in ......
  • Steward v. Gold Medal Shows
    • United States
    • Alabama Supreme Court
    • June 3, 1943
    ... ... of life that may be presented ... In ... Sloss-Sheffield S. & I. Co. v. Devaney, 7 Ala.App. 457, ... 60 So. 990, 991, in a case ... In ... Alabama Fuel & Iron Co. v. Baladoni, 15 Ala.App. 316, 73 ... So. 205, it was held: ... ...
  • Sloss-Sheffield Steel & Iron Co. v. Devaney
    • United States
    • Alabama Supreme Court
    • November 7, 1914
    ...of Jasper, for appellee. McCLELLAN, J. On the former appeal of this case, the Court of Appeals reversed the judgment on review. 7 Ala.App. 457, 60 So. 990. The action for damages, and is stated in two counts, one for malicious prosecution and one for false imprisonment. The only errors assi......
  • Birmingham Ry., Light & Power Co. v. Arnold
    • United States
    • Alabama Court of Appeals
    • January 21, 1913

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