Standard Sur. & v. Johnson

• Decision Date: 05 February 1947
• Docket Number: No. 31445.,31445.
• Citation: 41 S.E.2d 576
• Court: Georgia Court of Appeals
• Parties: STANDARD SURETY & CASUALTY CO. OF NEW YORK . v. JOHNSON.

41 S.E.2d 576

STANDARD SURETY &CASUALTY CO. OF NEW YORK .

v.JOHNSON.

No. 31445.

Court of Appeals of Georgia,

Division No. 2.

Feb. 5, 1947

.

Rehearing Denied Feb. 28, 1947.

Error from Superior Court, Fulton County; Bond Almand, Judge.

Action by James T. Johnson against the Standard Surety & Casualty Company of New York as the surety on the official bond of A. B. Foster, Sheriff of Fulton County, to recover on such bond for illegal arrest and for false imprisonment. Judgment for plaintiff, and defendant brings error.

Affirmed.

Smith, Partridge, Field & Doremus and W. S. Northcutt, all of Atlanta, for plaintiff in error.

Reuben A. Garland and William Hall, both of Atlanta, for defendant in error.

PARKER, Judge.

James T. Johnson sued Standard Surety and Casualty Company of New York, the surety on the official bond of A. B. Foster as the sheriff of Fulton County. The action is in two counts, one for an illegal arrest and the other for false imprisonment, each claiming damages in the sum of $5,000. It was alleged that about midnight on July 29, 1945, two lawful deputies of Sheriff Foster went to the home of the plaintiff and unlawfully and illegally arrested him; that he had not committed any act for which any lawful warrant had issued, and had committed no crime in the presence of said officers, and they had no warrant for his arrest; that said deputy sheriffs carried the plaintiff from his home to the Fulton County jail where he was imprisoned by them and kept in custody over night and until an early hour on the day following, and they did not at any time have or secure a warrant against the plaintiff; that at the time the plaintiff was arrested the officers had in their hands for service upon him a civil process only, and that the arrest was malicious and showed a total want of probable cause, and the incarceration constituted false imprisonment, and for the acts of said deputies in arresting and confining the plaintiff the defendant was liable in damages to the plaintiff. The defendant answered denying the alleged tortious acts and conduct of the deputy sheriffs. There was a verdict in favor of the plaintiff for $750 on each of the two counts. The defendant made an amended motion for new trial which was overruled, and error is assigned on that judgment.

1. The fourth, eleventh and twelfth grounds of the amended motion allege that the verdict was excessive as a whole, and as to the amounts found by the jury on each of the two counts. The argument is that the arrest and the imprisonment were one transaction, and that the verdict for $750 on either count was ample compensation in damages for the whole affair; and that an action for malicious arrest could be based only upon an arrest under process of law, without probable cause, when made maliciously as stated in the Code, § 105-1001. An arrest without a warrant, unless made under one or more of the circumstances set out in the Code, § 27-207, is illegal and is a tort for which an action will lie. Piedmont Hotel Co. v. Henderson, 9 Ga.App. 672(3), 72 S.E. 51; Hines v. Adams, 27 Ga.App. 157, 107 S.E. 618; Vlass v. McCrary, 60 Ga.App. 744, 5 S.E.2d 63; Franklin v. Amerson, 118 Ga. 860, 45 S.E. 698. The arrest complained of in the first count is described therein and referred to as unlawful, illegal, wrongful, inexcusable, unreasonable, arbitrary, malicious, without warrant and without authority. The officers had in their hands when they made the arrest no criminal warrant or other process of law, except a civil action against the plaintiff in which a restraining order had been granted. It is not necessary or proper to decide whether such civil suit was a "process of law" by reason of which the plaintiff could maintain an action for malicious arrest under the Code, § 105-1001; nor is it necessary or proper to decide whether the arrest and the imprisonment were separate torts that could be sued for in two counts or were one tort only for which an action for false imprisonment would lie. These questions were not raised in the court below by demurrer, by motion to dismiss, or by motion in arrest of judgment, and they have not been raised in this court by a direct writ of error. They cannot be raised in a motion for new trial. Kelly v. Strouse & Bros., 116 Ga. 872, 43 S.E. 280. The plaintiff alleged an illegal arrest in one count and false imprisonment in another count, and in the absence of a demurrer or motion to dismiss, the court properly submitted both counts to the jury. "Where the petition as amendedpurports to set out a cause of action for an illegal arrest in one count, and a cause of action for an illegal imprisonment in another count, and the case proceeds to trial upon both counts, it is not error, upon the ground that an illegal arrest and an illegal imprisonment are not in law separate and distinct wrongs, for the court to submit to the jury's consideration the plaintiff's case as alleged in the two counts in the petition." Central of Georgia R. Co. v. Dabney, 44 Ga. App. 143(2), 160 S.E. 818, 819. See also Piedmont Hotel Co. v. Henderson, supra.

We cannot say as a matter of law that the verdict for $750 on each count was excessive. The general rule is that a reviewing court has no power to set aside the finding of the jury as excessive unless it appears that the verdict was due to bias or prejudice or was influenced by corrupt means. Atlantic Greyhound Corporation v Austin, 72 Ga.App. 289, 33 S.E.2d 718, and citations. As to the amount of the verdict see also McClurc Ten Cent Co. v. Humphries, 33 Ga.App. 523(10), 127 S.E. 151, Central of Georgia R. Co. v. Dabney, supra, Price Mercantile Co. v. Adams, 56 Ga.App. 756, 194 S.E. 29, and Hester v. Shrouder, 64 Ga.App. 572, 13 S.E.2d 875.

2. Ground thirteen alleges that the court erred in excluding certain testimony offered by the defendant. The deputy sheriff on duty at the jail the night the plaintiff was arrested, and who requested the other deputies to go to plaintiff's home in response to telephone calls, in explaining the conduct and showing the motives of the other deputies in making the arrest, testified as follows: "I was on duty at the jail the next night, Sunday night, July 29th, 1945. About 12:00 o'clock on the 29th a woman called over the telephone. She told me who she was. This woman called. and first said there was a man out there threatening her and the children and she wanted somebody to come out there. * * * In subsequent conversations when she called she said about the same thing over that she said at first, and she was crying over the phone and was hysterical and said that something should be done at once. She first said it was just a man, and I really thought I should do something about it. * * *"

The court refused to permit this witness to testify further that the woman "said her name was Mrs. James T. Johnson", and "then later on she said it was her husband, but they were separated". The exclusion of the last two statements is complained of as erroneous and as harmful and prejudicial to the defendant.

We do not think the evidence was improperly excluded. The Code, § 38-302, provides: "When, in a legal...