Opinion
6 Div. 872.
February 4, 1936.
Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.
Action for false imprisonment by F. O. Kibbey against the United States Fidelity Guaranty Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Benners, Burr, McKamy Forman, of Birmingham, for appellant.
Where the only basis of a verdict in favor of plaintiff must rest upon speculation, pure and simple, a choice merely of conjecture, it is not sufficient to justify the refusal of the affirmative charge to the defendant. Southern R. Co. v. Woodstock Mills, 230 Ala. 494, 161 So. 519; St. L. S. F. R. Co. v. Dorman, 205 Ala. 609, 89 So. 70. Giving information of a crime to officers, or a request that the officers investigate a crime is not aiding or abetting or instigating a prosecution. Dismukes v. Trivers Clo. Co., 221 Ala. 29, 127 So. 188; American Sur. Co. v. Pryor, 217 Ala. 244, 115 So. 176. Where the arrest is by an officer, before an outside defendant can be held liable therefor it must be shown either that defendant or his agent directed, commanded or instigated the arrest, and that such conduct was a material factor in causing the officer to make the arrest. If the officer acts on his own initiative and responsibility the defendant would not be liable in any event. Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754; Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am. St. Rep. 32.
Frederick V. Wells and John W. Carlton, both of Birmingham, for appellee.
The jury is authorized to draw such inferences as it believes to be fair and reasonable and consistent with the other evidence proved. Southern R. Co. v. Gullatt, 158 Ala. 502, 48 So. 472. A person may be the responsible instigator of an arrest without expressly commanding, requesting or directing it. Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754. Giving information of crime to officers or request that officers investigate a crime is not aiding, abetting or instigating a prosecution, but the law is otherwise if the information was a misrepresentation of facts in order to induce action or if there was a suppression of known material facts. Dismukes v. Trivers Clo. Co., 221 Ala. 29, 127 So. 188; American Sur. Co. v. Pryor, 217 Ala. 244, 115 So. 176. The test is, whether the principal directed, commanded or in any way instigated the arrest, and whether such conduct, if shown, was a material factor in causing the officer to make the arrest, Standard Oil Co. v. Davis, supra; Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am.St.Rep. 32.
Norris Green was a deputy sheriff in and for Jefferson county, and as such he was required and did give a surety bond conditioned on the faithful performance of the duties of his office. On said bond, defendant became the surety.
Plaintiff claims that the said Green, while acting within the line and scope of his duties as such deputy, caused the unlawful arrest and imprisonment of plaintiff to his injury, etc.
On the trial and after the evidence was all in, the defendant requested the court to give in writing the general affirmative charge as to each count of the complaint. The court refused to give this charge, and that action is here assigned as error.
The rule regarding the action for unlawful arrest and false imprisonment is well stated by Somerville, judge, in the case of Standard Oil Company v. Davis, 208 Ala. 565, 94 So. 754, as follows: (1) Whether or not the defendant or his agent directed, commanded or in any way instigated the arrest; and (2) whether such conduct, if shown, was a material factor in causing the officer to make the arrest."
If the officer acts solely upon his own judgment and initiative, the defendant would not be responsible even though he had directed or requested such action, and even though he were actuated by malice or other improper motive. Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am. St. Rep. 32.
We have read and carefully considered the testimony in this case, and without entering into a detailed discussion thereof, we find as a matter of fact that there is no scintilla of evidence which would authorize a jury to find a verdict for the plaintiff, but on the contrary, it appears that the arrest and confinement of the plaintiff by the officers in Birmingham was due to an independent investigation by them under circumstances rendering the action of the plaintiff at the time of the arrest worthy of close investigation. In any event, Norris Green, for whom this defendant was surety, did nothing more than any good citizen ought to have done in reporting to the duly constituted authorities the fact that an automobile had been found standing on the roadside for several hours after midnight.
The court committed reversible error in refusing to give the general charge as requested, and for this error the judgment is reversed, and the cause is remanded.
Reversed and remanded.