Summary
In Hotel Tutwiler Operating Co. v. Evans, 208 Ala. 252, 94 So. 120, the Supreme Court said that the use of the word "wrongful" rather than the word "unlawful" in a complaint charging false imprisonment is not bad on demurrer for the reason that, "... A wrongful arrest or imprisonment is not rightful; and, if not rightful, it is necessarily unlawful."
Summary of this case from Super X Drugs of Alabama, Inc. v. MartzOpinion
6 Div. 558.
June 23, 1922. Rehearing Denied October 12, 1922.
Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge.
Tillman, Bradley Baldwin and F. M. Brown, all of Birmingham, for appellant.
The complaint does not state a cause of action. 69 S.W. 959; 103 Ala. 345, 15 So. 663, 49 Am. St. Rep. 32; 103 Ind. 183, 2 N.E. 582; 58 Colo. 175, 143 P. 1092; 101 Neb. 159, 162 N.W. 421. The defendant was due the general affirmative charge. 139 Ala. 161, 34 So. 389; 140 Ala. 582, 37 So. 387; 141 Ala. 246, 37 So. 341; 149 Ala. 539, 43 So. 355; 184 Ala. 567, 64 So. 46. An erroneous written charge, given at the request of one party, is not cured by a correct charge given at the request of the other party, or by the court. 77 So. 726; 150 Ala. 390, 43 So. 723; 192 Ala. 576, 69 So. 4; 200 Ala. 560, 76 So. 918. Acts 1915, p. 816, relieving an appellant of the necessity to present his bill of exceptions to the trial judge when said judge is absent, is not invalid. 75 So. 331; 187 Ala. 411, 65 So. 942.
London, Yancey Brower, of Birmingham, for appellee.
Acts 1915, p. 816, is unconstitutional and void. Const. 1901, § 45; 187 Ala. 411, 65 So. 942. Each count of the complaint states a cause of action. 195 Ala. 414, 70 So. 734; 153 Ala. 375, 44 So. 979; 196 Ala. 659, 72 So. 261; 103 Ala. 345, 15 So. 663, 49 Am. St. Rep. 32. A charge in an action for false imprisonment, purporting to deal only with the issues as to the arrest of the plaintiff, does not withdraw all other defenses from the jury. 198 Ala. 162, 73 So. 451; 159 Ill. App. 466; 77 So. 328. One employed by a corporation engaged in the hotel business as its manager is a vice principal, for whose acts in trespass, done in performance of the corporate business, the corporation is liable. 156 Ala. 369, 47 So. 48; 16 Ala. App. 652, 81 So. 144.
The motion to strike the bill of exceptions is based on the failure of the trial judge to indorse upon the bill the true date of its presentation to him, showing a presentation within 90 days from the date on which the judgment was rendered; and this insistence is based on the contention that the act of September 25, 1915 (Gen. Acts 1915, p. 816), amending section 3022 of the Code of 1907, is in violation of section 45 of the Constitution, in that it contains two subjects, one of which is not expressed in the title, the argument being, in particular, that the provision authorizing the filing of the bill with the clerk in lieu of a presentation to the trial judge, in the contingencies specified, is not indicated by the title, and is not germane thereto. This objection to the validity of the act has been recently considered by this court, and the validity of the act was sustained in the case of Sallie J. Smith v. Birmingham Realty Co. (6th Div. 557) ante, p. 114, 94 So. 117.
The appellant in this case has followed the provisions of the act, and, the act being valid, the motion to strike the bill of exceptions must be overruled.
The unlawfulness of the imprisonment is the gist of an action for false imprisonment. Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am. St. Rep. 32; King v. Gray, 189 Ala. 686, 66 So. 643. And "detention of a person by another with force, or against the will of the person detained, is an imprisonment in law; and, if such detention is not rightful, it is unlawful." C. of G. Ry. Co. v. Carlock, 196 Ala. 659, 72 So. 261.
Each of the three counts of the complaint states a cause of action, and the demurrers, the grounds of which were general only, were properly overruled. Strain v. Irwin, 195 Ala. 414, 70 So. 734, and authorities supra. Appellant's contention that the third count is fatally defective, even though the first and second are not, because it charges a "wrongful" instead of an "unlawful" arrest and imprisonment, cannot be sustained. A wrongful arrest or imprisonment is not rightful; and, if not rightful, it is necessarily unlawful. C. of G. Ry. Co. v. Carlock, supra.
The questions propounded to the witness Almon called for mere conclusions on his part, and were properly excluded. The witness stated the facts, and his impression or opinion as to their significance was not proper for the consideration of the jury, who, could draw their own conclusions from all the evidence before them. It may be that the admission of such conclusions, their validity being subject to impeachment on cross-examination, would not be held as reversible error, but the court cannot be put in error for rejecting them.
The special instruction given to the jury at the instance of plaintiff was clearly and vitally erroneous, since it directed a verdict for the plaintiff upon the predicate merely of his arrest by an agent or servant of defendant, and took away from the jury the essential question of the agent's authority, on the one hand, or of the principal's ratification, on the other.
On this question, and on the general principles of liability applicable to this case, the trial judge correctly instructed the jury both in the oral charge and in the special charges given at the instance of defendant; and we apprehend that the giving of the erroneous charge was merely an inadvertence on his part. If it were misleading only, it would be cured by the other instructions referred to, as held in Forbes v. Plummer, 198 Ala. 162, 73 So. 451. On the contrary, it is flagrantly erroneous, and in direct contradiction of the other instructions; and in such cases this court has always declined to speculate or conjecture as to which of the opposing instructions the jury may have followed, and has held that the giving of the erroneous and injurious charge must work a reversal of the judgment. As observed in L. N. R. R. Co. v. C. M. Brewing Co., 150 Ala. 390, 43 So. 723:
"An instruction which attempts to cover the whole case, and authorizes a finding for one party or the other, according as the jury may determine certain facts, is erroneous, if it omits any material issue; and such error is not cured by another instruction properly submitting the omitted issue."
We need not consider the action of the trial judge in refusing to give the general affirmative charges requested by defendant, covering the first and second counts separately, and also the entire complaint.
Very clearly, however, a count charging trespass against a corporation, as its own direct act, may be supported by proof that it was authorized or ratified by the vice principal or alter ego of the corporation. Union Naval Stores Co. v. Pugh, 156 Ala. 369, 47 So. 48. Here the authorization or ratification, if there was any at all, was by the hotel manager, Mr. Halfacre, who was undoubtedly the vice principal, and whose acts, with respect to the operation of the hotel and the conduct of its business, were the direct acts of the corporation itself. The doctrine of the Henry Case, 139 Ala. 161, 34 So. 389, which has often been followed by this court, and which is now invoked by appellant as entitling it to the general affirmative charge as to the first and second counts, is not applicable to cases of corporate action shown to have been by a vice principal, as distinguished from an ordinary agent or servant.
It is therefore clear that, so far as the general affirmative charge is concerned, all of the counts stood upon the same footing; the right to a recovery depending in each case on proof of an unlawful arrest or detention of plaintiff's person by an agent of the defendant acting within the scope of his authority, or whose act, if originally unauthorized, was presently or subsequently ratified by the defendant company, or its managing and responsible agent.
For the error noted the judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.