Emerson v. Lowe Mfg. Co.

49 So. 69 | Ala. | 1909

McCLELLAN, J.

Action for damages for false imprisonment and for malicious prosecution by appellant against appellee. The general affirmative charge for the defendant might well have been given upon the counts for false imprisonment. The undisputed evidence shows that the warrant, under the command of which plaintiff was arrested by an officer, Avas valid on its face, Avas issued by a justice of the peace having jurisdiction of the case and of the offense imputed, and upon a complaint (the original) sufficiently disignating the offense created by Code 1896, § 4757 (Code 1907, § 7342), as such designation is permitted, in prosecutions before justices, by Code 1896, § 4000 (Code 1907, § 6703). Lieb v. Shelby Iron Co., 97 Ala. 626, 12 South. 67. We therefore treat the appeal without reference to the counts for false imprisonment.

The prosecution was commenced by C. D. Finney. Finney, some of the testimony tended to shOAV, Avas the superintendent of the defendant and as such had the general authority and power of the defendant to rent its cottages and lands or lots and to collect the rents therefore. At the same time the affidavit charging plaintiff with a violation of Code 1896, § 4757, Avas sworn out by said Finney, he also made, as superintendent of the defendant, an affidavit to induce the issuance by the justice of the peace of a Avrit of attachment for the purpose of collecting the rent alleged to be due from plaintiff to the defendant company. The defendant insisted that Finney’s act in instituting the prosecution was the result of his own motion and individual purpose, and independent of his relation to defendant; and the plaintiff insisted that Finney’s act was in the line and scope of his authority as superintendent, and was so taken, and hence was the defendant’s act. Upon this vital issue, to be determined by the jury as the facts and circumstances appear from this record, Finney as a witness made the statement that “he swore out the warrant against Emerson on his own responsibility.” The motion of the plaintiff to exclude the statement, because illegal, was overruled, and exception was reserved. This action of the court was'error. The statement was of the essence of the issue to be decided by the jury. It was not only a conclusion of the witness, but was also the announcement, as evidence, of the secret motive or intention that inspired his act in the premises. All of the justices, except Justice ANDERSON, avIio agrees AAdth the writer on this point, are of the opinion that this statement was one relating to the capacity in which the AAdtness acted, and not his intention or motive, and was admissible. What took place; in the conversation betAveen Finney and Solicitor Taylor, with reference to the swearing out of the Avarrant by Finney against plaintiff, was of the res gestae of that act, and Avas properly admitted. While, if taken alone, the alleged fact that the mill did not want Emerson arrested would not have been admissible, yet, under the rule referred to, was, especially in the aspect that legal advice in the premises Avas then being sought.

Charge 5, given at the request of the defendant, Avas erroneous, since it required the jury to- be satisfied of the hypothesized fact; Avhereas the legal condition to a recovery by plaintiff was that the jury should hare been reasonably satisfied. — Moore v. Heincke, 119 Ala. 627, 640, 24 South. 374. The charge is probably sub ject to other criticisms.

Charge 7, given at the request of the defendant, might well have been refused, because calculated to mislead the jury,- in that authority, aside from that inhering (if so) in the powers and-duties conferred on Finney by the defendant, was essential to render the defendant liable for Finney’s act in the premises. However the giving of the charge, merely calculated to mislead, was not error. The plaintiff should have asked an explanatory charge.

There was no error in giving charge 10, requested by the defendant. It did not assume any fact, but hypothesized only the remaining of Emerson in the house after his term of renting had expired. The exercise of a legal right can never afford ground for the imputation of malice.

There is no merit in the other errors assigned. The alleged effort of the plaintiff to pay the claim for rent, as now appears, was rent for the “house,” and not rent of the “land.”

For the errors indicated, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson, Denson, Mayfield, and Sayre, JJ., concur. Anderson, and McClellan, JJ., dissent in part.