Southern Car & Foundry Co. v. Adams

• Decision Date: 27 November 1902
• Citation: 32 So. 503,131 Ala. 147
• Court: Alabama Supreme Court
• Parties: SOUTHERN CAR & FOUNDRY CO. v. ADAMS. [1]

32 So. 503

131 Ala. 147

SOUTHERN CAR & FOUNDRY CO. v. ADAMS. ^[1]

Supreme Court of Alabama

November 27, 1902

Appeal from circuit court, Calhoun county; John Pelham, Judge.

Action by Lewis Adams against the Southern Car & Foundry Company. From a judgment for plaintiff, defendant appeals. Reversed.

This was an action to recover damages for malicious prosecution brought by the appellee, Lewis Adams, against the Southern Car & Foundry Company. After demurrers to the original complaint were sustained, said complaint was amended, and as amended contained five counts, which were as follows:

"(1) Plaintiff claims of defendant the sum of $5,000 damages for maliciously and without probable cause therefor, causing the plaintiff to be arrested upon a warrant issued by Elmore Garrett, a justice of the peace, on, to wit, the 6th day of January, 1900, on a charge of malicious mischief and injury to personal property, which charge before the commencement of this suit has been judicially investigated and said prosecution ended and plaintiff discharged.

"(2) Plaintiff claims of defendant the sum of $5,000 damages for maliciously and without probable cause therefor, causing the plaintiff to be arrested upon a warrant issued by Elmore Garrett, a justice of the peace, on, to wit, the 6th day of January, 1900, on a charge of malicious mischief and injury to personal property, which charge, before the commencement of this suit, was dismissed in open court by said defendant, through its agent or agents and by its attorney, and said prosecution judicially ended and plaintiff discharged.

"(3) Plaintiff claims of defendant the sum of $5,000 damages for that on, to wit, the 6th day of January, 1900, Chas. W. Cook, who was on the date aforesaid night superintendent of the rolling mill of said defendant, Southern Car & Foundry Company, and whose duty and business it was, under said employment, to act as agent for said defendant in looking after and superintending the employés and machinery of said rolling mill, while acting in the line and scope of his authority as such agent, and at the instance of said defendant and by its authority caused plaintiff to be arrested and imprisoned, by appearing before Elmore Garrett, a justice of the peace, and maliciously and without probable cause therefor, upon affidavit, procured the issuance of a warrant against said plaintiff, charging him with malicious mischief and injury to personal property, and that by reason of said false and malicious affidavit, and the warrant issued thereon, defendant as aforesaid, was arrested and imprisoned on said charge, from, to wit, the 6th day of January, 1900, to the afternoon of the 8th day of January, at which time defendant appeared by its agent or agents and through its attorney dismissed said prosecution, and the same was judicially ended and terminated and defendant discharged."

The fourth count was substantially the same as the third count, except that it set out in hæc verba the affidavit of complaint made by Chas. W. Cook before a justice of the peace and the warrant of arrest which was issued by a justice of the peace. The averment as to the disposition and termination of the prosecution was the same as that contained in each of the preceding counts. The fifth count was substantially the same as the third count. The difference between the counts of the complaint, as amended, and those contained in the original complaint, is sufficiently shown in the opinion. The demurrers to the amended complaint are also sufficiently shown in the opinion. These demurrers were overruled, and thereupon the defendant pleaded the general issue.

On the trial of the cause, the plaintiff introduced in evidence the complaint which was sued out before Elmore Garrett, as justice of the peace, and which was signed by Chas. W. Cook. This complaint, omitting the signature and the state and county, were in words and figures as follows: "Before me, Elmore Garrett, a justice of the peace in and for said county, personally appeared C. W. Cook, who being duly sworn deposes and says that he is night superintendent of the rolling mill of the Southern Car & Foundry Company, at Anniston, Alabama, and that he has probable cause to believe and does believe that in said county and state and on or about January 5, 1900, Lewis Adams unlawfully and maliciously broke and injured a piece of machinery of the Southern Car & Foundry Company, to wit, a jaw of a large pair of shears, against the peace and dignity of the state of Alabama." The plaintiff also introduced in evidence the warrant issued by the justice of the peace upon this complaint, which stated that the plaintiff in the present suit was charged with having committed the offense of malicious mischief and injury to personal property. It was further shown by the evidence for the plaintiff that he was arrested under the warrant issued upon said complaint on January 6, 1900, was imprisoned and remained until January 8, 1900, when the prosecution was dismissed by order of the defendant's attorney; the justice of the peace testifying that said attorney told him that he did not think the case as charged could be made out, and that he, the justice of the peace, could dismiss the case against the defendant, who was the plaintiff in the present suit. The justice of the peace further testified that the costs of the case were paid by direction of the general superintendent of the defendant's plant upon the order given therefor by C. W. Cook, who made the affidavit and complaint before him against the plaintiff in the present suit. It was then shown that in accordance with the order of attorney of the defendant said prosecution against the plaintiff in the present suit was dismissed and was so entered upon the docket of the court, and that the costs in the suit were paid by the defendant in the present suit. It was further shown that the prosecution was commenced by reason of shears used in the rolling mill of the defendant being broken while operated by the plaintiff; that these shears were used for cutting up scrap iron; and that they were broken while the plaintiff was trying to cut a large piece of steel, which the evidence for the defendant tended to show was contrary to the orders given to the plaintiff. It is unnecessary, however, to set out this evidence in detail. The facts relating to the ruling of the trial court upon the evidence are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the defendant requested the court to give to the jury, among others, the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) If the jury believe the evidence they will find the issues in favor of the defendant. (2) The court charges the jury that Chas. W. Cook had the right to institute the prosecution of the plaintiff without reference to his employment by the defendant, and that if he swore out the warrant on his own responsibility and not by the authority, or at the instance of the defendant, then they cannot find for the plaintiff."

There were verdict and judgment for the plaintiff, assessing his damages at $250. Defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Willett & Brothers, for appellant.

H. D. McCarty and D. C. Blackwell, for appellee.

HARALSON J.

This is an action for malicious prosecution under section 5090 of the Code.

1. The first count in the complaint is in Code form for such an action. Code, p. 947, Form 20. The demurrer to this count is, that the complaint being for "malicious mischief and injury to personal property," does not sufficiently describe the property. We need not notice the demurrer, however, since it is not insisted on in argument of counsel.

The demurrer to the other counts was, among other grounds, that they do not aver that said charge had been judicially investigated. The second count avers, that the "charge before the commencement of this suit was dismissed in open court by said defendant, through its agent or agents and by its attorneys, and said prosecution ended and plaintiff discharged." The others are to the same effect and in nearly the same language. The demurrers to these counts were sustained. The plaintiff amended, the second count as amended averring, "which charge, before the commencement of this suit, was dismissed in open court by said defendant, through its agent or agents and by its attorneys, and said prosecution judicially ended and plaintiff discharged," and the others, as amended, make the same averments in substance, the only difference between the amended and original counts, as to this matter being, that the word, "judicially," was inserted before the word, "ended," making them read, that the same were judicially ended and terminated and plaintiff discharged.

2. The defendant demurred to the second, third and fifth counts of the complaint as amended on the ground, that it does not appear therefrom, "that said charge has been judicially investigated;" and further as to the third count, that it does not sufficiently appear therefrom, that the said Cook was authorized by the defendant to cause the arrest and imprisonment of plaintiff, or that defendant ratified the same, if it was done. To the fourth, on the same grounds assigned as to the second, third and fifth counts, and further, that it does not appear therefrom, that it was any of Cook's duties in looking after the employés in (defendant's) said rolling mill, to cause the arrest and imprisonment of the plaintiff.

In McLeod v. McLeod, 75 Ala. 483, which was an action for damages for malicious prosecution, where a nolle prosequi was entered on the motion of the prosecutor, and which action...