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Court of Appeals of Alabama
Jun 5, 1934
156 So. 639 (Ala. Crim. App. 1934)


6 Div. 457.

May 8, 1934. Rehearing Denied June 5, 1934.

Appeal from Circuit Court, Jefferson County; R. B. Carr, Judge.

Action by H. M. Smalley against the Great Atlantic Pacific Tea Company, for assault and battery and false imprisonment. From a judgment for plaintiff, defendant appeals.


Certiorari denied by Supreme Court in Great Atlantic Pacific Tea Co. v. Smalley, 229 Ala. 289, 156 So. 641.

Assignments of error 20, 21, and 22 are as follows:

"20. The court erred in sustaining the objection of the appellee to the following question asked the witness, William Hill: 'Q. But you had been placed there to watch him this particular night?'

"21. The Court erred in making the following remarks to the jury:

" 'Gentlemen of the jury, before we go further in the testimony, before noon I admitted in evidence over the objection of plaintiff in this case, testimony which tended to show that on previous occasions the plaintiff in this case had been seen stealing or taking goods from this store. The court is of the opinion now, after more mature deliberation, that that evidence should not have been admitted. So, I am saying to you, now, as emphatically as it is possible for me to say, that you must not consider that testimony tending to show that on previous occasions this man was seen taking goods or groceries from this store without paying for them. You recall that testimony of the witness who testified that on some other occasions he had been seen taking some goods from the store. The court is of the opinion that that is not competent and should not have been admitted in the first instance, and the court regrets that it did let it go in and after realizing the fact that it was error, I feel it my duty now, to eliminate it from your deliberation, and I tell you emphatically that you must not consider this testimony.'

"22. The Court erred in overruling the objection of appellant to the following question propounded to the witness Walter Smith: 'Q. Have you during the time you have known him ever heard anything against his good name in that community?' "

Plaintiff's evidence tends to show that after purchase by him of groceries from defendant's store, the manager charged him with the theft of goods and, with another person not connected with defendant's store, assaulted and beat plaintiff, thereafter causing his arrest by officers and detention at the store for some thirty minutes, after which defendant's superintendent directed plaintiff's release and apologized to him. Defendant's evidence was in substance that all or some part of the goods in possession of plaintiff had been taken without being paid for, and that the only assault was made by the third party.

J. L. Drennen, of Birmingham, for appellant.

Where counts are in trespass for the act of the defendant corporation itself, proof of actual participation on the part of the defendant in the damnifying act is essential to sustain the charge. City Del. Co. v. Henry, 139 Ala. 161, 34 So. 389. In a false imprisonment case, the principal is exonerated where the agent causes the arrest after the offense has been committed or the property already taken from his custody, so that an arrest cannot be for preservation of the goods but merely to punish the offender and vindicate justice. 25 C.J. 502; Markley v. Snow, 207 Pa. 447, 56 A. 999, 64 L.R.A. 685. If the imprisonment is under legal authority, it cannot be false, and, unless illegal, the detention will not support false imprisonment. Code 1923, § 7967; 25 C.J. 445; Leib v. Shelby Iron Co., 97 Ala. 626, 12 So. 67. In an action for false imprisonment, the character of the plaintiff is immaterial. Davis v. Sanders, 133 Ala. 275, 32 So. 499. Every fact tending to prove existence or not of grounds for imputing to plaintiff the illegal act charged was admissible. Beckwith v. Bean, 98 U.S. 266, 25 L.Ed. 124.

Beddow, Ray Jones, of Birmingham, for appellee.

The evidence was ample to fix liability against defendant corporation for the conduct of its manager; that the manager was vice principal of the corporation. Hotel Tutwiler Operating Co. v. Evans, 208 Ala. 252, 94 So. 120; Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754; So. Bell T. Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L.R.A. 193, 55 Am. St. Rep. 930; Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am. St. Rep. 32; 11 Michie's Dig. Ala. Rep. 67. The arrest by the manager, being unauthorized and unlawful, could not be justified by showing that some one else had probable cause. Sanders v. Davis, 153 Ala. 375, 44 So. 979; Rich v. McInerny, supra; C. I. C. Co. v. Wright, 20 Ala. App. 82, 101 So. 815; Id., 212 Ala. 130, 101 So. 824. Whether Smalley had committed other and different larcenies at other and different times would have no bearing on the question whether he was guilty of the larceny charged. Amer. Exp. Co. v. Patterson, 73 Ind. 430; O'Malley v. Whitaker, 118 La. 906. 43 So. 545; Durham v. Feeney, 195 Mich. 318, 162 N.W. 79; Milton v. Mo. Dairy Co., 188 Mo. App. 278, 175 S.W. 105; Texas M. R. Co. v. Dean, 98 Tex. 517. 85 S.W. 1135, 70 L.R.A. 943; Nelson v. Snoyenbos, 155 Wis. 590, 145 N.W. 179. The ruling pointed out in assignment 22, if error, was without injury, as the witness had testified without objection to the same effect. Ruffin Coal Transfer Co. v. Rich, 214 Ala. 622, 108 So. 600.

It is our opinion, and we hold, that the witness Carlyle, appellant's store manager, was, under the testimony, for the purposes here involved, appellant's alter ego, or principal. Southern Bell Telephone Co. v. Francis, 109 Ala. 224, 242, 19 So. 1, 31 L.R.A. 193, 55 Am. St. Rep. 930.

It results that, appellee's testimony being, obviously, more than a "scintilla," there was no error in refusing the general affirmative charge, duly requested by appellant, as to any of the counts of the complaint; nor as to the complaint as a whole. Norwood Hospital v. Brown, 219 Ala. 445, 122 So. 411.

While we have examined each of the said assignments of error, together with the rulings underlying same, and are persuaded that the said assignment has no merit, yet we feel constrained to apply the rule recently laid down by our Supreme Court (Code 1923, § 7318) for our guidance, and decline to discuss the following designated assignments of error, to wit: First, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth.

The rule we refer to is deducible from the following excerpt from the opinion by Mr. Associate Justice Brown in the case of Futvoye et al. v. Chuites et al., 224 Ala. 458, 140 So. 432, 433, to wit: "The appellants' treatment of assignments of error 5 and 6 is not sufficient, under the repeated rulings here, to invite consideration and treatment of these assignments. As to assignment 5, they say: 'The court should have sustained defendants' demurrer to plaintiffs' replication No. 2, as the matters set up therein were mere conclusions of the pleader, and no facts are averred on which to base such conclusions.' The same treatment is accorded assignment 6."

While we do not know that the Supreme Court has undertaken to direct the way and manner in which an "argument" shall be made, in order to merit being denominated an "argument," still, from the quoted excerpt just set out, it seems clear that merely "asserting," even if in a variety of ways, that the ruling underlying a given assignment of error is erroneous, is not sufficient. The duty rests upon the appellant, in a civil case, to "point out" error; and "pointing it out" consists of more than merely saying: "There it is!" We venture to suggest that it includes pointing out, under the law — cited — why it is error.

The "argument" of each of the assignments of error we have listed above does not, in our opinion, rise to any greater degree of efficacy than the "argument" of the assignments of error which the Supreme Court refused to consider in the Futvoye et al. v. Chuites et al. Case, mentioned; hence our decision to omit consideration of said assignments. Code 1923, § 7318, supra.

We do not wish to be understood, however, as being in any sense critical of the way in which appellant's counsel has presented his comments, if any, upon the assignments in question. It is obvious, in each instance, that he has said about all there was to be said.

The written charge, the refusal of which is made the basis of appellant's second assignment of error, was, as it appears in the transcript, confused, confusing, and unintelligible. The charge is as follows, to wit: "Unless you are reasonably satisfied from all the evidence that E. F. Carlisle did not request or cause Policeman Weir to arrest plaintiff, you cannot find a verdict against defendant for a false arrest and imprisonment." (Italics ours.) It was properly refused; if the italicized word "not" was inserted by mistake, we know of no authority reposed in us to delete it.

The written charge refused to appellant, which refusal is the basis of its fourth assignment of error, was, it seems to us, and we hold, substantially covered in principle by other charges given to the jury; particularly its written, requested, and given charge which we have lettered A, on page 17 of the transcript. There is hence no merit in said assignment of error No. 4. Code 1923, § 9509.

There is no merit in appellant's assignments of error Nos. 20 and 21. The statement by the trial judge made the basis of the said assignment of error No. 21 seems to us to be correct; and we find nothing in the case of Beckwith v. Bean, 98 U.S. 266, 25 L.Ed. 124, which causes us to conclude otherwise.

There appears no merit in appellant's assignment of error No. 22. Central Iron Coal Co. v. Wright, 20 Ala. App. 82, 101 So. 815, Id., 212 Ala. 130, 101 So. 824.

We have considered every assignment of error which seemed to be even slightly insisted upon. None of them is based upon a prejudicially erroneous ruling.

The judgment is affirmed.


Summaries of


Court of Appeals of Alabama
Jun 5, 1934
156 So. 639 (Ala. Crim. App. 1934)
Case details for


Case Details


Court:Court of Appeals of Alabama

Date published: Jun 5, 1934


156 So. 639 (Ala. Crim. App. 1934)
156 So. 639

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