Abingdon Mills v. Grogan

52 So. 596 | Ala. | 1910

ANDERSON, J.

Each of the counts of the complaint were for a malicious prosecution and were in Code form, and which said form applies to corporations as well as persons. The counts charged the corporation with the act complained of, and the averment that the prosecution was instituted by its agents was superfluous and unnecessary, as the act charged could have only been done through its agent or representalive. It charges the corporation with instituting the prosecution, and in order for it to have been done by the corporation it must have appeared that the agent or representative was acting within the scope or line of his authority, and it was not necessary to aver that the agent or representative was so acting. Nor did the complaint have to aver the name of the agent or representative.—Birmingham Ry. Co. v. City Stables Co., 119 Ala. 615, 24 South. 558, 72 Am. St. Rep. 955. The trial court did not err in overruling the demurrers to the complaint.

Whether the trial court did or did not err in sustaining the demurrer to plea 4 we need not decide, as the defendant could get the benefit of the matter there set up, under the general issue, which was pleaded and under which the defendant offered evidence of the facts set up in said plea 4. — O’Neal v. McKinna, 116 Ala. 620, 22 South. 905; McLeod v. McLeod, 73 Ala. 42; Shannon v. Simms, 146 Ala. 673, 40 South. 574; Goldstein v. Drysdale, 148 Ala. 486, 42 South. 744.

While no general rule can be laid down as to the degree of diligence to be used in maldng search for the original document, in order to lay a predicate for the introduction of secondary evidence of the contents thereof, it depending largely upon the circumstances of the case and the character of the document, yet it must be shown that every reasonable effort which would result in its production was made without avail. — Sims v. State, 155 Ala. 96, 46 South. 493; 1 Greenleaf on Evidence, 558; O’Neal v. McKinna, 116 Ala. 606, 22 South. 905; Boulden v. State, 102 Ala. 78, 15 South. 341; Ala. Construction Co. v. Meador, 143 Ala. 336, 39 South. 216. Applying the foregoing rule to the case at bar, we are of the opinion that the plaintiff did not lay a sufficient predicate of the loss of the affidavits and warrants, and the trial court erred in permitting secondary evidence of their contents. They were last traced into the custody of the grand jury, and there was no effort to show by the foreman or any other member thereof what had become of same. Townes, a deputy clerk, said they returned some papers; but he did not know whether they returned all papers, or that the ones that were returned included the ones in question. EOe said, “Sometimes they do not turn over to the clerk all their papers.” He also stated that Roper, the clerk, was in the office at the time, and he did not know whether the papers were turned over to the clerk or himself. They may have been turned over to Roper, or they may have been destroyed by the grand jury, or may still be in the custody of the foreman or some other member, or they may have been turned over to some one other than the deputy clerk Towns. We think the case of O'Neal v. McKinna, supra, is an authority in point against the sufficiency of the predicate attempted in the present case.

The entry in the grand jury docket showing no bill was properly admitted to show the termination of the prosecution, and the numbers were sufficient as prima facie evidence to identify the charge under investigation. — Shannon v. Simms, 146 Ala. 673, 40 South. 574.

The conversation between the plaintiff and “Herring” the night of the arrest was competent to show motive or malice, as it appeared from the evidence that Herring was at the time acting as defendant’s superintendent, was, in fact, its alter ego.

There was evidence from which it could be inferred that “Maggie Clutch” and Brown, of the Fulton Bag & Cotton Mill of Atlanta, had conspired to entice away certain laborers of the defendant, that the plaintiff went to Huntsville for the purpose of co-operating with them in the scheme, was closeted with said “Maggie Clutch” and became a party to said scheme, and which was a misdemeanor, if committed, and under section 6471 of the Code of 1907 can be the basis of a conspiracy. It is also a well-settled proposition of law that, when a prima facie conspiracy is established, any acts or declarations on the part of any of the co-conspirators in connection with and in furtherance of the common purpose may be shown in evidence. The trial court erred in not letting the witness James White tell what Maggie Clutch told him the plaintiff came to Huntsville for. Of course, the discussion of this question is entered into as a mere guide upon another trial and upon the theory that the secondary proof discloses the real affidavit. If the proper affidavit has been set out, then it must have been made under section 6849 of the Code of 1907. It does not aver that the laborers were under a written contract, and was not therefore made under section 6850 of the Code of 1907. We cannot agree with the contention of appellee’s counsel that section 6849 has no application to employes of a cotton mill, but applies to menial servants only. The word “servant” is broad enough to cover laborers at a cotton mill, and we think, as used in said section, is synonymous with “laborer.” It is true that section 6850 uses the words servant and laborer as well as others not mentioned in the preceding, section, but we do not think that said last section prevents section 6849 from applying to “laborer” as included in the word “servant.” The rule of construction is that, when statutes are in pari materia, they must be so construed as to give each a field of operation when it is possible to do so without doing violence to the language of either. The result is that section 6849 applies to apprentices and servants and which last word includes laborers, whether under written contract or not, and fixes a fine of not less than $20 nor more than $100, and may be imprisoned for three months, but no part of the fine goes to the injured party. On the other hand, section 6850 relates to persons not included in section 6849 as well as servants therein included, provided they were under a written contract, fixes a different fine, and provides for indemnity to the injured party. The result is, when a servant is enticed away from his master, whether under a written contract or not, he can be convicted under section 6849 and punished accordingly; but, in order for him to be convicted and punished under section 6850, it must be averred" and proven that the servant or laborer was under a written contract of employment.

There was no error in excluding so much of the Herring showing as was excluded by the trial court. Whether or not Herring made a full and fair statement of all the facts to solicitor Pride was a question for the jury. — Goldstein’s Case, supra. In order for the jury to determine this question, the facts should have been detailed and the statement of Herring that he made full and fair statement was but a conclusion. It is insisted, however, that only a portion of the excluded evidence was a conclusion, and-that the other part of the excluded evidence was not subject to the grounds of the motion, whether good evidence or not. With the conclusion excluded, the other part that went with it was irrelevant and immaterial, and the trial court will not be put in error for excluding it all. The rule that counsel for the appellant attempts to invoke applies to the sustaining of the court when the motion to exclude is overruled, and not to reversing the court for sustaining a motion to exclude.

There was no error in permitting the plaintiff to show that Sanders was appointed a deputy sheriff a.t the instance and request of the defendant. It is true, if he acted solely as a deputy, and not as the defendant’s agent, the defendant would not be liable for his act; hut the defendant’s interest in getting him appointed might he a factor in determining whether or not he was acting as the defendant’s agent rather than in the sole capacity of a deputy sheriff.

The trial court did not err in refusing, the general charge requested by the defendant. Whether or not the plaintiff was guilty of the offense with which he was charged was a question for the jury and not the court. It is also true that if the prosecution was instituted on the advice of a reputable practicing attorney, given on a full and fair statement by the prosecutor of all the facts known to him, or which by proper diligence he could have ascertained, even though the advice was erroneous or was not warranted by the facts stated, there would be a complete defense to the action; but it was a question for the jury to determine whether or not Pride unequivocally advised the prosecution, and whether or not a full and fair statement was made to him. Nor do we think the defendant was entitled to the general charge under the Henry Case, 139 Ala. 161, 34 South. 389 — a case so generally misunderstood by the profession that it is often resorted to as a panacea for all corporate wrongs.

The trial court did not err in refusing charges 8 and 9, requested by the defendant. If not otherwise bad, they invaded the province of the jury.

For the errors suggested, the judgment of the. law and equity court is reversed, and the cause is remanded.

Beversed and remanded.

Dowdell, C. J., and McClellan and Sayre, JJ., concur.