Rich v. McInerny
103 Ala. 345
Ala.
1893
Check Treatment
HEAD, J.

Fаlse imprisonment is the unlawful restraint of a person contrary to his will. But two things are requisite, viz. : Detention of the person, and unlawfulness of such detention. — 7 Amer. & Eng. Encyc. of Law, 661, 662. Malice is not material, except in aggravation of damages. Nor is probable cause of guilt, on the part of the party imprisoned, when the imprisоnment is under a criminal charge, material, except as it may be rendered so, by the provisions of sections 4262 and 4266 of the Code, in cases to which those sections are applicable. — 7 Amer. & Eng. Encyc. of Law, 663, 664. If the imprisonment is under legal process, but *352the prosecution has been commenced and carried on maliciously and without probable cause, terminating in the discharge of the defendant, it is malicious prosecution, and not false imprisonment. — lb. 663. The action for damages for false imprisonment ‍‌‌​​‌​‌​‌‌‌‌​‌‌‌‌​​​​‌‌‌​‌‌‌‌​​​​‌​​‌‌​‌‌​​​​‌​‌‍is in trespass; for malicious prosecution, in case.

In Ragsdale v. Bowles, 16 Ala. 62, decided in 1849, the averments of the complaint were that the defendant “falsely, maliciously, and without probable cause, charged the plaintiff with the crime of felony, and upon said charge, falsely, maliciously, ' and without probable cause, caused the plaintiff to be arrested by his body, and to be imprisoned, and kept and detained in prison for a long time, to-wit, for the space оf one day, then next following, and at the expiration of which said time, he the said defendant caused the said plaintiff to be released and set at liberty, and wholly abandoned his said prosecution.” The action was instituted and intended as one for malicious prosecution, and was prosecuted and defended in the court below, and in this court, as such. The defendant demurred to the declaration on the ground that it did not sufficiently aver the termination of the prosecution. Dargan, J., began the opinion of this court with the statement that, “This was an action on the case for a malicious prosecution;” and proceeded tо dispose of the demurrer, above mentioned, to the declaration, and held that the averment touching the termination of the prosecution was insufficient, and that the count was, therefore, bad, considered as a count for malicious prosecution. But, he proceeded further to say, that the count was good for false inprisonment; and for this reason held that the demurrer was properly overruled. The idea underlying this conclusion, manifestly, was, that the descriptive words, “falsely, maliciously and without probable cause,” were sufficient to show that the acts of arrest and imprisonment charged were unlawful; and there being nо allegation that they were done under a valid warrant, the prosecution of which had terminated in the discharge of the defendant, the' count was held to contain all the . essentials of trespass for false imprisonment. It was clearly/however, notintended to affirm by this decision, that, in order to give an action for fаlse imprisonment, it was necessary that the arrest and detention should have been under a crim*353inal charge, preferred falsely, maliciously and without probable cause. These characteristics, while they constitute unlawfulness, in themselves sufficient to show trespass, and support an action of that nature, when thе arrest is not under legal process, are yet restrictive of the unlawfulness by which the action may be supported; and they were material to the action then before the court, only because they were alleged, and constituted the only character of unlawfulness which was alleged.

For instance, it was nеver intended to be decided that a wrongful imprisonment, not based upon a criminal charge, would not give an action of trespass for false imprisonment; or that an unlawful imprisonment, without legal process, based upon a criminal charge, effected without malice, and with probable cause, would not give such an action. Suppose the case of an arrest and imprisonment by a private person, in good faith, upon a charge of misdemeanor, not committed in his presence, of one actually guilty of the offense; surely, in such a case, an action for false imprisonment would lie.

Shortly after the decision of Ragsdale v. Bowles, supra, the Code of 1852 was adоpted, and in it a schedule of forms of complaints was promulgated. Among these forms, is one headed : ‘ ‘For false imprisonment.” With the case of Ragsdale v. Bowles evidently before the codifier, he substantially conformed this ‍‌‌​​‌​‌​‌‌‌‌​‌‌‌‌​​​​‌‌‌​‌‌‌‌​​​​‌​​‌‌​‌‌​​​​‌​‌‍form to the declaration in that case, and wrote it thus :

“A. B. plaintiff i The plaintiff claims of the defend - vs. > ant--dollars, as damages for C. D. defendant ) maliciously, and withоut probable cause therefor, arresting and imprisoning (or, if the case be so, causing the defendant [?] to be arrested and imprisoned) on a charge of larceny, (or other-felony as the case may be) for — days, viz. : on the — day of-.’ ’ This form was carried into the Codes of 1867 and 1876 without change ; and into the Code of 1886, sо changed as to correct the mistake, whereby the word ‘ ‘defendant” was used when “plaintiff” was intended, "and to adapt the form to an arrest under any criminal charge, whether felony or otherwise. It thus appears, as we said of the declaration in Ragsdale v. Bowles, that the form of complaint, prescribed by the Code, is highly restrictivе of the nature and character of the wrongful acts, which, under the general principles of law, will support an ac*354tion of trespass for false imprisonment. Pursuing that form, the action is maintainable only when the arrest and imprisonment are done or caused by the defendant, upon a criminal charge, with malice and without probable cause. We are of opinion it was not the intention of the legislature to make this form exclusive. We can not suppose it was designed to abolish the probably graver offenses of false imprisonment, civilly actionable, which are not characterized by the elements the form makes essential. This question, however, is not now before us, since the present complaint pursues the form prescribed. It alleges arrest and imprisonment of plaintiff, by the procurement of the defendant, upon a charge of larceny, with malice, and without probable cause. Being alleged, these elements must be shown to have existed, to justify a recovery by the plaintiff.

By statute, a marshal or policeman of an incorporated city or town, as well as sheriffs and .constables, may, within the limits of his county, arrest a person without a warrant, when he has reasonable cause to believe that such person has committed a felony, although it may afterwards appear that a felony had not, in fact, been committed. — Code, §§ 4260 and 4262. In making the arrest the officer must inform the person of his authority, and the cause of the arrest, except when he is arrested on pursuit. — Code, § 4263. There are other cases, not necessary to mention, in which аrrests may be made by officers without warrant. See sections of Code, supra. The defendant interposed a special plea, setting up that the alleged arrest and imprisonment of plaintiff were had and made by a policeman of the town of Decatur, an incorporated town in Morgan county, Alabama, thе said policeman having reasonable cause to believe that plaintiff was guilty of the offense of grand-larceny. The plaintiff demurred to this plea, assigning as grounds, that it fails to deny that the arrest was done, caused or effected, ‍‌‌​​‌​‌​‌‌‌‌​‌‌‌‌​​​​‌‌‌​‌‌‌‌​​​​‌​​‌‌​‌‌​​​​‌​‌‍at the instance, request or command of the defendant, without reasonablе cause or belief on the part of the defendant that the plaintiff was guilty of grand larceny ; and that it fails to deny that defendant caused the arrest of plaintiff maliciously and without probable cause. These pleadings are aptly framed to present the question they are intended to present, which is, whether the facts stated in the plea, taken in connection with the *355facts averred in the complaint and not traversed by the plea, do not show the injury complained of was consequential upon the defendant’s wrong, by reason whereof, the plaintiff’s remedy is in case, and not in trespass. The argument in support of the рlea is that as the arrest was by an officer, upon a charge of felony, who had reasonable cause to believe the plaintiff guilty, the act was lawful on the part of the officer; and the defendant, therefore, in procuring the arrest procured the commission of a lawful act; and his conduct being сharacterized by malice and want of probable cause, his wrong doing consisted, notin causing an unlawful arrest, but a lawful arrest, in an unlawful manner. The vice of the argument, we conceive, is, that it erroneously supposes that the rightfulness or lawfulness of the officer’s act, in arresting one, without warrant, who he has reasоnable cause to believe has committed a felony, can be predicated upon the command or direction of another, procuring him to do the act. Such lawfulness on the part of the officer is predicable alone of information possessed by him, affording him reasonable cause to bеlieve that a felony has been committed by the party arrested; hence the arrest must be of the officer’s own volition, based upon this reasonable cause, and must not be induced by the command or direction of another. If he acts by the command or direction of another, and arrests and imprisons one upon a charge of a felony which has not been committed, or if committed, the party commanding the arrest had no reasonable cause to believe was committed by the person arrested, the act is unlawful on the part of the officer himself, as well as the person who procured it. — Code, § 4266. And this is true, although, at the same time, he may have had reasonable cause to believe the party guilty. If he acted upon the command or request of another, without which he would not have made the arrest, the act can not be legally considered as resulting from the reasonable belief of guilt. We do not mean to intimate that the officer’s information, which will give him reasonable cause of belief, justifying the arrest on his part, may not be derived from another, who may, at the same time, command or request him to make the arrest. We wish it understood that the distinction we draw is, that the command or request must not be the moving cause of the officer’s act, *356but his act must proceed alone from his reasonable cause of belief of the party’s guilt, based upon his information of facts touching guilt, howsoever derived. Whether he so acted, will always be a question of fact to be deter- ■ mined upon a consideration of all the circumstances of thupаrticular case. As a corollary, if the officer was not induced by the command or request given by another, but acted alone upon reasonable cause to believe the party guilty, then such command or request, though given, can not be deemed a cause of the arrest, and the party giving it would be guilty of no trespass, without regard to the motive with which it may have been given. The plea, in question, in legal effect, confesses that the act of the officer was caused by the command of the defendant, and seeks to avoid its consequences, by the allegation, that he, the officer, at the same time, had reasonable cause to believe that the plaintiff was guilty of the felony mentioned. It does not go so far, even, as to allege that this reasonable cause of belief concurred with the defendant’s command, in inducing the officer to act. The demurrers were properly sustained.

We have seen that the plaintiff toоk upon himself to allege that ¡the defendant caused him to be arrested and imprisoned, on a charge of larceny, maliciously and without probable cause. We construe the larceny charged to mean grand larceny, under our statutes, as the pleader has not alleged it to have been of a smаller'grade. The pleas and replications, as we interpret them, do no more than put these allegations in issue.

On the trial, it appeared that the arrest was made by police officers of Decatur, and the plaintiff, while testifying, was permitted to state, against the objection and exception of defendant, that the officers said, at the time of the arrest, that Rich, meaning defendant, had accused him of stealing a ring. There was no error in this ruling. All that was said by the officers while making the arrest was admissible as res gestae. Besides, there was evidence tending to show that they acted by command and procurement of the defendant, and if thе jury believed ‍‌‌​​‌​‌​‌‌‌‌​‌‌‌‌​​​​‌‌‌​‌‌‌‌​​​​‌​​‌‌​‌‌​​​​‌​‌‍that evidence, all that the officers said or did, in furtherance'of such command, could be considered as evidence against him.

The court tried the case upon the theory that the existence of malice and want of probable cause, actuating *357the defendant to cause the arrest, if he did cause it, were immaterial. We hаve shown that they were material by reason of being alleged. It was incumbent on plaintiff to satisfy the jury of both. All the charges, therefore, given for the plaintiff, except the seventh, were erroneous, in view of this principle. For like reason, the second charge requested by defendant ought to have been given.

All the other charges requested by the defendant were properly refused. The 3d exacts too high a measure of proof that defendant caused the arrest. The fourth incorrectly defines larceny, for reasons too obvious to require mention.

The fifth and sixth were properly refused because of their argumentative character.

The fifth charge, given at the instance of plaintiff, correctly defines “probable cause,” to be, “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in the belief that the plaintiff was guilty.” ‍‌‌​​‌​‌​‌‌‌‌​‌‌‌‌​​​​‌‌‌​‌‌‌‌​​​​‌​​‌‌​‌‌​​​​‌​‌‍Under the complaint, as framed, if the defendant had such probable cause to believe that the felony had been committed, whether, in fact, it had been committed or not, and that the plaintiff was guilty thereof, the plaintiff was not entitled to recover.

The seventh charge given for the plaintiff, whilst it protects defendant against a recovery, if he acted without malice, or with probable cause, yet authorizes a recovery against him if he directed the arrest of plaintiff by the policemen, whether those officers acted in pursuance of such direction, or entirely of their own volition. As we have already said, if they were not moved or induced tо make the arrest and imprisonment by the direction or request of defendant, it is immaterial whether he gave such direction or request or not; or, if he did, how malicious may have been his motive in giving it, or how palpable the want of probable cause. We remark, further, that if the defendant did no more than accuse the plaintiff of the theft, and give information to the officers of the facts upon which he based the accusation , upon which accusation and information the officers acted of their own volition, without command, direction or request of the defendant, then defendant is not liable in this action, although he may have аcted maliciously *358and without probable cause, in making the accusation and giving the information. The seventh charge is also erroneous in assuming that the plaintiff suffered injury to his feelings. Whether he did or not was a question for the jury, not the court.

For the errors pointed out, the judgment of the city court is reversed and the cause remanded.

Eeversed and remanded.

Bkickell, C. J., not sitting.