U.S. Cast Iron Pipe & Foundry Co. v. Henderson

• Decision Date: 20 March 1928
• Docket Number: 6 Div. 202
• Citation: 116 So. 915,22 Ala.App. 448
• Parties: UNITED STATES CAST IRON PIPE & FOUNDRY CO. v. HENDERSON.
• Court: Alabama Court of Appeals

116 So. 915

22 Ala.App. 448

UNITED STATES CAST IRON PIPE & FOUNDRY CO. v. HENDERSON.

6 Div. 202

Court of Appeals of Alabama

March 20, 1928

Rehearing Denied April 24, 1928

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action for false imprisonment and malicious prosecution by Tom Henderson against the United States Cast Iron Pipe & Foundry Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Certiorari denied by Supreme Court in United States Cast Iron Pipe &amp Foundry Co. v. Henderson, 116 So. 917.

Knox, Acker, Sterne & Liles, of Anniston, for appellant.

Barber & Barber, of Birmingham, for appellee.

SAMFORD J.

There seems to be little if any difference between the appellant and appellee on questions of law. The differences arise on an application of the law to the facts.

The first count charged that defendant's agent, while acting within the line and scope of his authority, unlawfully caused plaintiff to be arrested on a charge of larceny and imprisoned, etc. If the defendant's agent or servant while acting within the line and scope of his authority, did arrest and imprison plaintiff, or cause or instigate the same to be done by another on a charge of larceny, and such arrest and imprisonment was unlawful, then the defendant would be liable to the plaintiff under this count. Alabama Co. v Norwood, 211 Ala. 385, 100 So. 479; Clifton v Grayson, 2 Stew. 412.

There can be no doubt that Wilson, the agent of defendant, was acting within the line and scope of his authority, when he went to plaintiff's wagon and caused him to turn his wagon and go down to defendant's plant and in the opposite direction from that in which he was going. The facts and circumstances surrounding the parties and as to what took place from the time defendant's agent (Wilson) approached plaintiff at his wagon to and including the arrest of plaintiff by two policemen of the city of Birmingham, were sufficient to go to the jury as tending to prove the arrest of plaintiff and its instigation by Wilson as the agent of defendant, while acting in the line and scope of his authority. But the allegation of the complaint in the first count is: "Caused the plaintiff to be arrested and imprisoned on a charge of larceny." There is no evidence that any such charge was ever made by Wilson, either then or at any other time. Having made the charge, the burden was on plaintiff to make the proof, and, failing in this, the court should have given the general charge as to this count as requested by defendant. Grissom v. Lawler, 10 Ala.App. 540, 65 So. 705; Thompson v. Richardson, 96 Ala. 488, 11 So. 728; Bennett v. Black, 1 Stew. 494.

Coming now to a consideration of the case as made under the second count of the complaint; i.e., for malicious prosecution. The basis of this count is a warrant of arrest issued by W.R. Watkins, ex officio judge, etc., on the 2d day of June, 1925; which warrant was based upon an affidavit made by J.T. Moser, a police officer of the city of Birmingham, charging plaintiff with buying, receiving, concealing, or aiding in concealing, lead and wire cable of the value of $50, knowing it to be stolen, and not having the intent to restore it to the owner. As to the above warrant, Moser testified as follows:

"I am a special officer of the city of Birmingham, a city detective, and worked in that capacity in June, 1925. I investigated the case against George Williams and Tom Henderson for having some alleged stolen cable in their possession. I swore out the warrant. I was not at the plant of defendant when these men were taken into custody. I got in the case the next morning after they were arrested. I went to the Dixie Construction Company and looked over their yard and found where some wire had been taken, the prints of it. I tracked them to where it was carried out under the fence in a ditch, and there was weeds from there on to where it was, a wagon had been; and we couldn't track them any further on account of the weeds. I know Mr. Wilson as a special officer of the United States Cast Iron Pipe & Foundry Company. Neither he nor Mr. Taylor showed me where the wire had been picked up and loaded into the wagon. I do not know Mr Taylor. There was a young man who worked for the Dixie Construction Company. I think he worked there. He showed me where the wire had been picked up and loaded on the wagon. There was evidence of an object having been dragged from where this wire was missing to the outside of the fence in a ditch, in the direction of where the wagon tracks were. I had some communication with Mr. Newman of the Dixie Construction Company, and brought him to the city jail and showed him the cable, and he identified it as the cable of the Dixie Construction Company before the warrant was sworn out. I did not talk with Mr. Wilson or any other employee of the defendant before the warrant was sworn out. I talked to the police officers who brought the negroes in--Officers Ellard and Ellzey. No officers or employee of the defendant requested me either by telephone or in person to swear out the warrant for plaintiff. I made the investigation on information furnished me by the police officers of the city of Birmingham, and swore out the warrant on the information I gathered on my own investigation and on that alone."

"Plaintiff was turned loose on the criminal trial because we didn't have the men there to identify the wire. Mr. Walker was there, but he did not identify it. The reason they turned the negroes loose was because they didn't have

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