Wood v. Hacker

• Decision Date: 11 December 1928
• Docket Number: 6 Div. 251.
• Citation: 23 Ala.App. 12,121 So. 437
• Parties: WOOD v. HACKER.
• Court: Alabama Court of Appeals

121 So. 437

23 Ala.App. 12

WOOD v. HACKER.

6 Div. 251.

Court of Appeals of Alabama

December 11, 1928

Rehearing Denied Jan. 8, 1929.

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

Action for false imprisonment by Mrs. E. G. Hacker against D. W Wood. Judgment for plaintiff, and defendant appeals. Affirmed.

Matt H Murphy, of Birmingham, for appellant.

David J. Davis, of Birmingham, for appellee.

BRICKEN P.J.

Appellee brought her suit against appellant to recover of him the sum of $10,000, for unlawfully causing her to be arrested and imprisoned; that is, for false imprisonment. There were five counts to the complaint, all of which were eliminated, except count 5, which is in Code form, except that said count fails to aver on what charge the plaintiff was arrested and imprisoned, which is immaterial in so far as this case is concerned.

Demurrers were filed to the complaint as last amended. The trial court did not err in overruling said demurrers. Wood-Fruitticher Grocery Company was dismissed from the complaint as a party defendant, which disposes of the demurrer on the first and second grounds thereof. The demurrers were also properly overruled on grounds 3, 4, 5, 6, 7, 8. "A person may be the responsible instigator of an arrest without expressly commanding, requesting, or directing it." Standard Oil Co. v. Davis, 208 Ala. 565 94 So. 754; Standard Oil Co. v. Humphries, 209 Ala. 493, 96 So. 629.

Issue was joined between the plaintiff and defendant on count 5 of the complaint, and the defendant's plea of the general issue.

According to all the evidence shown by the record in this case, the appellee was unlawfully arrested and imprisoned by one W. B. Helton, a city detective for the city of Birmingham. We may add that the arrest, according to the detective's own statement of all the causes and incidents, was a most outrageous performance. The question is, Did the appellant cause the arrest and imprisonment of the plaintiff under any well-defined tendencies of the evidence?

According to the appellee's testimony, the arrest was made without legal justification or excuse, and was therefore unlawful.

The evidence for the appellant consisted of the testimony of the detective, Helton, and of the testimony of the appellant himself.

Helton testified, among other things, that he had been to see D. W. Wood, the appellant, in regard to some discrepancies between the Birmingham Hotel & Bakeries Supply Company, on Avenue B in Birmingham, and other business concerns in said city, with reference to certain accounts or transactions that accrued or occurred just prior to the time this business was closed.

The appellee was office manager, and kept the books, of said Birmingham Hotel & Bakeries Supply Company.

The detective had been assigned, by the chief of police, to the duty of clearing up said discrepancies. These matters had been discussed between the appellant and the detective before the detective went to see the appellant. The detective had been advised by appellant that appellee's books kept by her for said Birmingham Hotel & Bakeries Supply Company had been audited, and the same were correct; that there were no charges whatever against her. The appellant gave the detective the telephone and house numbers, respectively, of appellee. The detective further testified that he did not get in touch with the appellee by 'phone, or otherwise, and that about two or three days after that he was notified by telephone, by some party, that the appellee had just gone into appellant's place of business, and this person told the detective "How she was dressed." The detective immediately went to appellant's place of business, parked his car, and arrested appellee as soon as she came out of appellant's place of business. Was this arrest unlawful, and was it in anyway instigated by appellant? The appellee, among other things, testified that she asked the detective to let her call up the appellant to prove by him who appellee was, and that the detective said, "Wood knows all about it," and that afterwards the detective said to her, "You don't blame Wood for making an investigation?" The detective further testified: "Mr. Wood had told me that he had no charges against her, and Mr. Wood didn't have anything at all to do with this. I went to see Mr. Wood on my own accord. Mr. Wood did not, at any time, direct, request or command me to arrest the plaintiff."

On cross-examination the detective testified: "I didn't ask Mr. Wood to call me because I didn't know whether he would or not."

As to the last-quoted paragraph of the detective's testimony, attention is here directed to the following statement made by Wood himself: "He (the detective) said he had tried to locate Mrs. Cothran (now Mrs. E. G. Hacker), the appellee, and had been unable to, and he asked me if I would notify him when she came back, and I told him I would. So when she came in, I called him, or it was supposed to have been him. That was the day the arrest was made. I told him how she was dressed."

Again the witness Wood, testifying on cross-examination, said: "I called Helton soon after she came in the store; I would say five or ten minutes after she came in. I described her clothing so he would know her."

Again Wood testified on cross-examination: "I didn't tell her that I was going to call the officers, neither did I tell anybody else. I kept that to myself."

The witness Wood further testified on cross-examination as follows: "My recollection is that I made an engagement with her for that day, and I expected her to come; I had one engagement with her to talk over a business matter and as quick as she came, I called the officer. I did that without talking to another soul about it. I told the officer that she was there and described her clothing. I had an engagement with her there to talk over business with her, and when she came into the store, before I talked with her and without talking to another soul about it, I called up the officer and told him that she was there and described her clothing. I had an engagement with her there to talk over business with her and when she came in the store, before I talked with her, and without talking to another soul about it, I called up the officer and told him that she was there and described her clothes."

The detective testified: "Mr. Wood had told me that he had no charges against her, and Mr. Wood didn't have anything at all to do with this. I went to see Mr. Wood on my own accord. Mr. Wood did not, at any time, direct, request or command me to arrest the plaintiff."

Mr. Wood testified: "I saw Mrs. Hacker two or three times after the business was discontinued. Our relations had been pleasant and cordial throughout the entire term of her employment."

On the last-quoted testimony of the detective and of Wood, the appellant, but for other testimony hereinabove quoted, appellant would probably have been entitled to the general affirmative charge on the issue of responsible causation on the part of the appellant for the arrest.

We will now consider the errors assigned by appellant. The first assignment is based upon the action of the court in giving the following charge at request of plaintiff;

"I charge you gentlemen of the jury that if you are reasonably satisfied from the evidence in this cause that Officer Helton unlawfully arrested and imprisoned the plaintiff on or about the 23d day of February, 1925, and that as a proximate consequence of said unlawful arrest and imprisonment plaintiff was humiliated, caused mental pain and anguish and to expend money for medical treatment and that the defendant, D. W. Wood aided and abetted the said officer, Helton, in making said arrest, then you must find for the plaintiff in this cause."

The trial court did not err in giving the above charge. One who aids and abets another in making an unlawful arrest and imprisonment, stands, in the eye of the law, in the shoes of the person who unlawfully arrests and imprisons another. It is sufficient if the aid furnished facilitates an unlawful arrest and imprisonment that would have transpired without it. Atty. Gen. v. Tally, 102 Ala. 25, 69, 15 So. 722.

It is without question that the telephone message from the appellant to the detective to the effect that the appellee was at the appellant's place of...