42 So. 735 | Ala. | 1906
Lead Opinion
— The plaintiff recovered damages of the defendant for his arrest and imprisonment Avith-out a warrant, made by one Boggan, a deputy of the defendant, Avbo Avas license inspector of the city of Birmingham.
Counts 2, 4, and 6 Avere charged out at the request of the defendant, and AA^e need not consider any assignments of error relating to said counts, unless they relate to the questions referable- to the other counts.
Pleas 3 and 4 denied the arrest under the authority of the defendant, and also sought to- justify same. If intended as a denial, the defendant got the benefit- of them under the general issue. If pleas of justification, then they were inconsistent and bad, in attempting to justify an act and at the same time denying the same. The demurrer to pleas 3 and 4 were properly sustained.
There is no proof that the arrest Avas made by the authority nf the defendant, unless the authority might be inferred from the declaration of Boggan at filie time of the arrest: “Gambill told me that you and two or three others were the leaders in the Milkmen’s Association, and that if I could make you pay license the balance would pay.” If this could be considered as -a. declaration that the defendant had authorized the arrest, it was not competent for that purpose. “The authority of an agent, where the question of its existence is directly involved, can only be established by tracing it to its
The acts of the defendant, the day of the trial, id ashing the judge to let him send for Attorney Thach, his conference with him, and the subsequent dismissal of the prosecution, were facts to go to the jury as affording an inference, not only of a subsequent ratification, but of a precedent authorization. In the ease of Shattuck v. Bill, 142 Mass. 61, 7 N. E. 40, it is held: “The plaintiff after his arrest, gave notice of his intention to take the oath for the relief of poor debtors; and* evidence was offered of the presence'and conduct of the defendant at these hearings, as tending to prove authority from him to go make the affidavit and cause the arrest on his behalf. To the admission of this evidence the defendant has no ground of exception. If the whole proceeding in relation to the arrest was without authority from defendant, it is not reasonable to suppose that he would take part in opposition to the application by the plaintiff to relieve himself therefrom; and his acts in relation thereto, although occurring after the arrest, had a tendency to show that it was initiated by his authority almost as directly as if he had thus expressly asserted it.” The evidence, therefore, of the subsequent conduct of the defendant at the trial, cured any error that may have been previously committed as to the acts and statements of Boggan.
There was no error in sustaining the plaintiff’s attorney’s objection to' the question to the plaintiff as to whom he sold milk, and whether or not Boggan knew at the time he was engaged in the milk business. They only tended to show a justification which was not spec
If there was any error in sustaining the objection to the question to witness McCurdy as to the election of Boggan as a special policeman, it was cured by the witness later testifying that he, as chairman of the police bdard, swore Boggan in as a special policeman in the year 1901.
Theie was no error in permitting plaintiff to prove that Boggan was defendant’s deputy collector during month of September, 1901.
In discussing the question of agency, we allude to the the fact that there was evidence from which a ratification of the arrest by the defendant could be inferred, and the general affirmative charge'requested by defendant was properly refused.
Charge 35 was properly refused, and is covered by a discussion of the evidence of Boggan’s statement.
Charge 24 was properly refused. It ignores any liability of the defendant upon the doctrine of ratification and was calculated to mislead the jury.
Charge 28 was properly refused. In the first place, it was abstract, as there was no evidence that plaintiff sold the milk in Boggan’s presence; second, it sought to justify the arrest, and there was no plea of justifiacation. While it is true the trial court permitted the defendant to introduce an ordinance restricting the sale of milk, this was doubtless let in under the other counts before they were charged out, and the plaintiff was not bound by this fact to try his case on the issue of justification, which had been eliminated by sustaining demurrers to the pleas seeking to invoke such a defense.
Charges 31 and 32 are subject to the same criticism made to charge 28.
Charge 36, if not otherwise bad, was misleading.
Charge 45 was properly refused,- Boggan may not have acted in the line and scope of his agency, yet the defendant would be liable if he ratified the act.
Charge 12, requested by the defendant, Avas properly refused. The jury could have inferred from the evidence that there Avas an authorization of the arrest, even if they were not satisfied that it was subsequently ratified.
The trial court properly refused charge 14 requested by the defendant. It was meaningless, as it sought to relieve the defendant for want of authority from “plaintiff” to Boggan to arrest “defendant.” The defendant was never arrested, and the plaintiff I s the complaining party; but the charge uses the words “plaintiff” and “defendant” in the wrong connectodn, thus rendering it unintelligible.
The judgment of the city court is affirmed.
Rehearing
— Counsel for appellant, in their brief on application for rehearing, contend that this court has no right to assume that certain counts of the complaint were eliminated by charges given, as those charges were not incorporated in the bill of exceptions, and cite a list of authorities to the effect that special charges will not be considered for reviewing the action of the trial court, unless set out in the bill of exceptions. We adhere to the rule that it is incumbent upon the appellant to set out in the bill of exceptions charges the giving or refusal of which is a basis of an assignment of error, and that the action of the trial court will not be reviewed in that respect, unless said charges appear in the bill of exceptions. This rule, however, does not prevent this court from looking to the entire transcript, in determining whether or not the trial court committed errors, or whether or not errors, if committed, were errors without injury. And, when the record shows that the general charge was given for the appellant as to certain counts, we Avill not review
Pleas 3 and 4 were subject to the criticism íxxade in the original opinion but counsel insist, in brief upon rehearing, that the defect to plea 4 was not sufficiently pointed out by the denxuxTer. We think the secoxxd ground of the deihurrer to this plea was sufficient.
We do not deem it necessary to- discuss at length the ruling of the trial court in permitting plaintiff to prove that Boggan was defendant’s deputy. True, we hold that no authority to make arrests without a warrant can be iixxplied because of this fact; but the fact that Boggan was his deputy wfis a circumstance to be considered by the jury, with the other evidence as to defendant’s ratification, iix ascertaining whether the act had been ratified or originally authorized.
Appellant also insist upon rehearing that assignment of error 14 was not discussed by this court in the original opinion. This assignment relates to the introduction iix evidence of a portion of the docket of the police court, aixcl was nowhere insisted on' in brief of -appellant’s counsel. And in the brief upon rehearing, while calling attexxtion to assignment No. 14, they argue -a different question, to-wit, the previous arrest of plaintiff by Boggan.
' Charge 16, refused to the defendant, was not consed-ered or discussed in the original opinion. It was grouped with the insistence as to refused charge 15, and was only alluded to at the end of the argument, and was inadvertently overlooked. The trial court conmmitted no reversible error in refusing charge 16. As a rule, agency or the authority of an agent cannot be established by the mere declarations of the agent (Womack v. Bird, 63 Ala. 500, and authorities supra) ; that is, agency or authority cannot be established by such declarations alone, but there are instances when it can be establshed by declarations, when taken in connection with other evidence. An agent may make- an admission, and there may be evidence from- wlxiclx it could be inferred that the principal -ratified what he said and did.
It is insisted upon rehearing that charge 45, refused to the defendant, was not subject to the vice pointed out in the opinion. If it was not ,it was properly refused. It instructs the jury, in effect, that the evidence fails to show that it was within the line or scope of Boggan’s authority to arrest persons for a violation o'f the city ordinance. The evidence does not so fail, for there was evidence from which the jury could infer a ratification and a previous authorization. If, therefore, it could be inferred that the act had been previously authorized, the court had no right to instruct the jury that the arrest was not within the line or scope of Boggan’s authority
The application for rehearing is denied.
