St. Louis-San Francisco Ry. Co. v. Swaney

• Decision Date: 23 June 1927
• Docket Number: 6 Div. 432
• Citation: 113 So. 410,216 Ala. 454
• Parties: ST. LOUIS-SAN FRANCISCO RY. CO. et al. v. SWANEY.
• Court: Alabama Supreme Court

113 So. 410

216 Ala. 454

ST. LOUIS-SAN FRANCISCO RY. CO. et al. v. SWANEY.

6 Div. 432

Supreme Court of Alabama

June 23, 1927

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages for malicious prosecution by Andrew J. Swaney against the St. Louis-San Francisco Railway Company and M.C Helton. From a judgment for plaintiff, defendants appeal. Affirmed.

Cabaniss Johnston, Cocke & Cabaniss, of Birmingham, for appellants.

Horace C. Wilkinson and Crampton Harris, both of Birmingham, for appellee.

ANDERSON C.J.

It may be conceded that the transcript of the plaintiff's testimony on the former trial was sufficiently identified by the testimony of Tyler in connection with Manly, the stenographer who took it down, and was admissible under the third rule as laid down in the case of Birmingham L. & P Co. v. Seaborn, 168 Ala. 658, 53 So. 241. But it contained much immaterial matter, including certain answers of Helton as well as the plaintiff, and, in order to put the trial court in error, the good should have been separated from the bad when it was offered in evidence.

Upon the close of the testimony the plaintiff requested the following written charge:

"If you believe from the evidence that the plaintiff, Mr. Swaney, was not in the car at the time and place named by Mr. Helton, then you should find for the plaintiff."

The record recites that:

"The defendants in open court consented to the giving of said charge, and the same was read to the jury."

This was, in effect an admission of the liability and responsibility of the defendants for the arrest and prosecution, and narrowed the issues down to whether or not the plaintiff was in the car when arrested by Helton and the amount of damages he was entitled to recover if he was not in said car. True, the consent did not specify any particular count under which the plaintiff would be entitled to recover, but it admitted a liability with the hypothesis under some one of them, and the refusal to eliminate either of them was of no injury to the defendants, as they each claim the same amount, and the same character of damages was recoverable under each of them.

The plaintiff denied being in the car, and he was corroborated in a sense, by the witness, Tucker, and we cannot say that the finding of the jury that he was not in the car was so contrary to the great weight of the evidence as to put the trial court in error for...