194 Ky. 840 | Ky. Ct. App. | 1922
Opinion of-the Court by
Never sing.
The appellant, Jesse Harper, an infant, suing by the appellant, Thomas Harper, as his next friend, brought this action in the court below against the appellee, Uriah Howton, seeking to recover of him damages for Jesse Harper’s alleged wrongful and false arrest, imprisonment and prosecution, maliciously and without probable cause, procured, as further alleged, by the appellee under a warrant charging him with a felony, to-wit: ■ the statutory crime of breaking and entering his, appellee’s, dwelling house and taking therefrom and converting to his own use property of value, not his own,- but of which crime the appellant, Jesse Harper, on motion of the county attorney and by the judgment of the Hopkins county court was acquitted -and the warrant against him dismissed.
The petition contained two paragraphs, and the trial court conceiving that by paragraph 1, a recovery of damages was sought for the malicious prosecution of the infant appellant by the appellee; and by paragraph 2, damages for the false arrest and imprisonment of the former by the latter; and that section 83, Civil Code, forbade the joinder of two such causes of action, compelled the appellants, by sustaining a motion of the appellee to that effect, to elect which of the two supposed causes of action they would prosecute. The appellants, after entering an exception to this ruling of the court, under protest, elected to prosecute the cause of action attempted to be stated in the second paragraph of the petition, whereupon the appellee filed a general demurrer to that paragraph, which the court sustained. Excepting to the latter ruling, the appellants refused to plead further, following the announcement of which the court entered judgment dismissing the petition. Appellants complain of the several court rulings mentioned, and also, of the resulting judgment. Hence, this appeal.'
The assumption of the circuit court that two inconsistent causes of action were attempted to be joined in the petition was error. There was, it is true, an attempt
‘‘ To constitute the injury of false imprisonment, there are two points requisite: (1) The detention of the person, and (2) the unlawfulness of such detention.”
Proof of malice or want of probable cause is unnecessary in a case for false imprisonment, though in such action the existence of the one and absence of the other may be proved in aggravation of damages. In an action for false imprisonment the right of the plaintiff to recover damages arises out of the mere unlawfulness of his imprisonment or restraint of his liberty by the act or procurement of the defendant. Newell Mal. Pros. 249; 12 Am. and Eng. Enc. Law 724-733; 2 Starke’s Ev. 1112; Reynolds v. Price, 22 R. 5; Southern Ry. Co. v. Shirley,
The first paragraph of the petition sufficiently states a cause of action for a malicious prosecution. The second paragraph, however, does not, in our opinion, state a cause of action for false imprisonment. Its averments of fact respecting the arrest and imprisonment of the infant appellant, and the false nature of the grounds upon which both were procured by the appellee, were but elements to be considered in determining whether there was the express malice by which, as alleged in each paragraph of the petition, the latter was actuated in instigating his prosecution for the crime charged, and likewise the malice impliedly arising from the want of probable cause for the prosecution, also alleged in each paragraph. Jones v. L. &. N. R. Co., 26 R. 690.
While the facts last referred to could be given in evidence under the general issue without being pleaded, the fact that they were pleaded did not make the second paragraph demurrable as containing a defectively stated cause of action for false imprisonment. If irrelevant or redundant matters appear in a pleading, the remedy of the party objecting to same lies in a motion to strike it from the pleading.
If right in our conclusion that the only cause óf action stated in the petition is that for malicious prosecution, it follows that the trial court erred both in sustaining the appellee’s motion to elect, and, also, his demurrer to the second paragraph of the petition. Wherefore the judgment is reversed and cause remanded for further proceedings not inconsistent with the opinion.