Wilson v. Vassar
| Decision Date | 15 April 1926 |
| Docket Number | 6 Div. 630 |
| Citation | 214 Ala. 435,108 So. 250 |
| Parties | WILSON v. VASSAR. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.
Action for damages for malicious prosecution by Rollie Vassar against Ellie Wilson. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.
Pinkney Scott, of Bessemer, for appellant.
Bumgardner & Wilson, of Bessemer, for appellee.
This is a suit by Rollie Vassar against Ellie Wilson for damages for malicious prosecution. The defendant pleaded general issue in short by consent, with leave to give in evidence any matter admissible in defense of the action, etc. The jury returned a verdict in favor of the plaintiff, and, from a judgment thereon by the court, this appeal is prosecuted by the defendant.
There is only one count in the complaint. It is exactly in Code form 20, section 9531, of the Code of 1923, for malicious prosecution, and contains these additional averments at the end thereof:
"Plaintiff avers that as a proximate consequence of said malicious arrest he was confined in jail for several days caused to be away from his family, suffered great mental pain and anxiety, and caused to spend a large sum of money for attorney's fee in defending said prosecution and obtaining his release."
These additional averments to the Code form did not render the count demurrable, but showed the special damages counted on and claimed in the count by the plaintiff. The court did not err in overruling the grounds of demurrer assigned to this count. Form 20, § 9531, Code of 1923; Walling v. Fields, 96 So. 471, 209 Ala. 389, headnotes 3-5, and authorities therein cited.
The defendant rented a garage to one Red Perkins. Red used it also as a repair and work shop. The plaintiff placed his car therein to be repaired. The defendant and Red had a misunderstanding or fuss about the rent due and unpaid on the garage. It was closed up by the defendant, containing the tools belonging to Red and others and the car of plaintiff. The defendant warned Red not to trespass on the garage premises. The plaintiff secured permission from defendant to remove his car from the building. Red was prosecuted by the defendant for trespassing on the premises. The plaintiff was in the city courtroom at Bessemer at Red's trial as a witness for him. The defendant left the courtroom and went to the office of the judge of the inferior court of Bessemer, swore out a warrant charging plaintiff with burglarizing this garage and with feloniously taking certain tools from it, the property of Tom Bradford. An officer with this warrant came to the city courtroom, the defendant pointed out plaintiff to the officer with the warrant. Plaintiff was arrested by the officer, tried on the warrant before the judge of the inferior court of Bessemer, found not guilty, and was discharged.
There was evidence tending to show that the plaintiff was not guilty of either offense charged in the affidavit and warrant, and there was evidence tending to show that Red and plaintiff entered this garage and took tools therefrom. There was also evidence that these tools of Tom Bradford were placed in the possession of Red, and that Red kept possession of them with knowledge and consent of Tom Bradford, and there was some evidence to the contrary. This was the tendency of some of the testimony in the cause.
The court did not err in allowing proof that plaintiff was in the city courtroom as a witness in Red's case and while there was arrested under this warrant and carried by the officer to the jail. The defendant was there at the time, and pointed out the plaintiff to the officer as the person to be arrested under the warrant. These were circumstances tending to show where the arrest was made, and that the arrest and prosecution of plaintiff was commenced and followed up by the defendant and probably a reason for it. Walling v. Fields, 96 So. 471, 209 Ala. 389; Wilson v. Orr, 97 So. 133, 210 Ala. 93, headnote 4.
The affidavit and warrant of arrest, and the judgment of the inferior court of Bessemer finding plaintiff not guilty and discharging him after the trial on the warrant, were competent and relevant evidence. It is true the name of plaintiff in the affidavit, warrant, and judgment of the court is Riley Vassel instead of Rollie Vassar, as in this cause, but the judge of the inferior court testified it was the plaintiff in this case that was tried under that affidavit and warrant in the inferior court of Bessemer by him, and the defendant testified that he pointed out the plaintiff to the officer as the person intended to be arrested on the warrant. It is clear the person intended to be prosecuted by the defendant was the plaintiff, and the plaintiff was the person arrested, tried, and found not guilty under that charge preferred by the defendant. So the court did not err in admitting in evidence the affidavit, warrant, and docket showing proceedings against plaintiff in that criminal case in the inferior court of Bessemer. All of this evidence was material. Walling v. Fields, 96 So. 471, 209 Ala. 389, headnote 1.
The plaintiff claimed in his complaint as special damages that he was caused, to be away from his family by this prosecution. The deprivation of plaintiff of the society of his wife and children is a proper element of compensatory damages in an action for malicious prosecution, and the court properly admitted in evidence proof that defendant was confined in jail for two or more days under the arrest for that charge, and that he had a wife and children with whom he was living at that time. Killebrew v. Carlisle, 12 So. 167, 97 Ala. 535, headnote 2; Walling v. Fields, 96 So. 471, 209 Ala. 389, headnote 3.
Red Perkins was a witness for the plaintiff. There was evidence tending to show, which was denied, that he and plaintiff went into this garage after it was closed by the defendant, and removed from it various kinds of tools. The defendant asked him on cross-examination, and the court sustained objection to the question, "Have you ever been arrested in the...
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