Gambill v. Cargo

43 So. 866, 151 Ala. 421, 1907 Ala. LEXIS 465

• Court: Supreme Court of Alabama
• Decided: April 9, 1907
• Status: Published

Opinions

ANDERSON, J.

T h e evidence without conflict showed, that the defendant instructed Boggan “to enforce the collection of licenses to arrest them.” See Boggan’s testimony on cross-examination. Gambill also testified that Boggan had been arresting people for violating ordinances for several years, “and that was with my knowledge, by my direction.” This evidence clearly shows that defendant had given Boggan authority to make arrests, and, if he did so wrongfully, he was nevertheless acting within the scope of his authority, and the defendant was responsible for said arrests. Whether the ordinance was valid or not we need not ■decide, as it was not being violated in the presence of Boggan, and he therefore had no right to arrest the defendant without a warrant. The trial court did not err in giving the general charge for the plaintiff.

It is insisted by counsel for appellant that the trial court committed error, because of charging upon the effect of the evidence, by giving said charge orally to the jury. What the.court did was simply to repeat to the jury the -contents of said charge, which had been requested 'by the plaintiff, and was in the hands of the court, indorsed “Given.” If this could be considered as Adolative of section 332G of the Code of 1896, which we do not hold, the error was cured by the written request of the plaintiff to the same effect. — Gulf City Co. v. Boyles, 129 Ala. 192, 29 South. 800; Pleasants v. Erskine, 82 Ala. 386, 2 South. 122.

There was no error in the oral charge of the court in charging the jury that it was within their province to assess punitive damages. The plaintiff proved that the arrest was unlawful, and this fact Avas undisputed; and it was for the jury to determine Avhether or not the act Avas done Avith malice and without probable cause. — Goldstein v. Drysdale, 42 South. 744; Alsop v. Lidden, 130 Ala. 548, 30 South. 401; Lunsford v. Deitrich, 93 Ala. 565, 9 South. 308, 30 Am. St. Rep. 79. Nor was there error in refusing charges 5, 6, 7, and 12, requested by the defendant. That part of the oral charge excepted to in reference to the ordinance Avas withdrawn by the court.

As the general charge Avas properly given for the plaintiff, there AAas no error in refusing charges 3, 10, and 11, requested by the defendant.

The trial court erred in permitting the plaintiff to show how the defendant Avas compensated for collecting license tax. It Avas immaterial to the issues involved Avhether he got a salary or was paid by commissions. Whether Avorking for a salary or for commissions, he AA’as liable for unlawful arrests, and Avas not' liable for laAvful ones. Nor did the manner in which he Avas paid tend to sIioav malice. While said evidence' Avas immaterial, it may haAe been highly prejudicial to the defendant.

All other assignments relating to the rulings upon evidence tended to establish the relationship between defendant and Boggan and the authority, of the latter, and, 'as the undisputed evidence shoAved that Boggan was defendant’s deputy and was authorized to make arrests, the trial court committed no reversible error in respect to the rulings as to this evidence.

For the error above designated, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, O. J., and Dowdell and Simpson, JJ., concur.