Southern Car & Foundry Co. v. Adams

131 Ala. 147

• Court: Supreme Court of Alabama
• Decided: November 15, 1901
• Status: Published

Opinion

HARALSON, J.

This is an action for' malicious; prosecution under section 5090 of the Code.

1. The first count in the complaint is in Oode form for such an action.- — Code, p. 947, form 20. The demurrer to this count is, that the complaint being for “malicious mischief and injury to personal property,” does not sufficiently describe the property. We need not notice the demurrer, however, since it is not insisted on in argument of counsel.

The demurrer to the other counts was, among other ground®, that they do not aver that said charge had been judicially investigated. The second count avers, that the “charge before the commencement of this suit was dismissed in open court by said defendant, through its agent or agents and by its attorneys, and said prosecution ended and plaintiff discharged.” The others are to the same effect and in nearly the same language. The demurrers to these counts, were sustained. The plaintiff amended, the 2d' count as' amended averring “which charge, before the commencement of this suit, was dismissed in open court by said defendant, through its agent or agents and by it® attorneys, and said prosecution judicially ended and plaintiff discharged,” and the others, as amended, make the same averments in substance, the only difference between the amended and original counts, as to this matter being that the word, “judicially,” was inserted before the word, “ended,” -making them read, that, the same were judicially ended and terminated and plaintiff discharged.

2. The defendant demurred to the 2, 3 and 5 counts’ of the complaint as amended on the ground, that it does not appear therefrom, “that said .charge has been judicially investigatedand further as to the 3d count, that it does not sufficiently appear therefrom, that- the said Cook was authorized by the defendant to cause the arrest and imprisonment of plaintiff, or that defendant ratified the same, if it was done. To the 4th, on the same grounds assigned as to the 2d, 3d and 5th counts, and further, that it does not appear therefrom, that it was any of 'Cook’s duties in looking after the employes in (defendant’s) said rolling mill, to cause the arrest and imprisonment of the plaintiff.

In McLeod v. McLeod, 75 Ala. 483, which was an action for damages for rnalicious prosecution, where a nolle prosequi was entered on the motion of the prosecutor, and which action resulted in a judgment for the plaintiff, it was held, that to. maintain an action for malicious prosecution, three facts must he shown, proof of each of which rests in the plaintiff, viz,, that the prosecution was instituted without probable cause, that it was malicious, and that it has been determined. It was further held that malice may be inferred from the want of probable cause; that the question in siucli cases is not whether the accused was in fact guilty, but whether the prosecutor, acting in good faith, and on the reasonable appearance of things, entertained the reasonable belief oi guilt; that it is not conclusive, or even prima. facie evidence of a want of probable cause, that the prosecutor, after setting the prosecution on foot, abandoned it, or permitted a nolle prosequi to be entered, and that such abandonment should be considered in determining whether, at the institution of the prosecution, there was probable cause for believing the accused was guilty of the offense charged. — Foster v. Napier, 73 Ala. 604; Cotton v. Wilson, Minor, 203.

It is everywhere held, that an action for malicious prosecution cannot be maintained before the termination of the prosecution; but it is held, that the criminal prosecution may be said to have terminated, when there is a verdict of not guilty, or when the grand jury ignores a bill; when a nolle prosequi has been entered or when the accused has been discharged from hail or imprisonment.' — Lowe v. Wartman, 47 N. J. Law, 413; Pope v. Pollock, 4 L. R. A. (36 Ohio St.), 255, notes; 14 Am. & Eng. Ency. Law, 29-31, and notes. In the volume last cited, the principle is stated, sustained by citation of authorities, that “All that is necessary is, that the particular prosecution or proceeding shall have been disposed of in a manner that it cannot be revived, and that the prosecutor, if he intends to proceed further, must institute proceedings de novo.”

In this case it is averred, in substance, in the several counts demurred to, that the prosecutor appeared and dismissed the proceedings against the plaintiff, and the prosecution was thereby ended and plaintiff discharged therefrom. If these averments are true, a wrong was inflicted on the plaintiff, the defendant in that prosecution, for which it would be anomalous i'f the law did not furnish him a remedy. If it be true that the plaintiff must, in order to sustain this suit, aver and prove that the prosecution against him had been “judicially investigated,” in the sense, that the charge preferred against him had been regularly tried by and before the arresting magistrate, and plaintiff, as the result thereof, had been acquitted and discharged, it is manifest, he ■could not- maintain his action for malicious prosecution, although he may have been damaged as much in -such case, as if he had been tried and acquitted. It is also apparent, he could not maintain an action for false imprisonment, for his arrest and imprisonment, since it appears that he was arrested by a proper officer, under a warrant regular on its face and issued by proper authority. — Leib v. Shelby Iron Co., 97 Ala. 626. He would be left, therefore, remediless for what might have been a very great and improper violation of his personal rights. Such a result is not compatible with the law, which professes to furnish a remedy for every wrong. We think the counts state a good cause of action against the defendant, and the demurrers to them were properly overruled. There are authorities apparently in conflict with this conclusion, and among them, the case of Ragsdale v. Bowles, 16 Ala. 62, and perhaps others of our cases following it. In so far as that case or others conflict with what is here determined, they must be modified.

The other grounds of demurrer to the complaint are manifestly without merit, and are not insisted on in argument.

2. The constable, one Sweets, testified that the magistrate placed the warrant for the arrest of plaintiff in his hands; that he went to the office of defendant company, where he found Mr. Cook, — who made the affidavit for arrest, and who described himself therein as “night superintendent of the Rolling Mill of the Southern Car & Foundry 'Company, at Anniston, Ala.,” — Mr. Cocolo and Mr. Stimson being there; that he was conducted to the office of the time-keeper, and there found and arrested the plaintiff and consigned him to jail, where he was kept until the afternoon of the 8th of January, the arrest having been made on the 6th of January, 1900. He also testified that Mr. Stimson, at the .time of the arrest, was the general superintendent of the defendant company; was the “head boss,” and had absolute charge and control of the plant. He was asked by plaintiff, if on the day of the arrest of Lewis Adams, he had any conversation with Mr. Stimson, the superintendent, with reference to the arrest and to state the conversation. He answered, “Mr. Stimson stopped me on the street about noon of the day upon which I arrested Lewis Adams, and asked me ‘if I had arrested him.’ I answered that I had not, but that I would do so. 'Stimson then said, that he was going to have this thing of. breaking his machinery ■stopped, or break somebody’s neck.” The defendant objected, to. the question when propounded, on grounds, “that the same was no part of the res gestae; that it was not shown that Stimson had any authority to bind defendant by any such statement as called for by the question; that it was illegal and incompetent,” and after the answer, moved to exclude the same. The answer was not subject to either of these grounds of objection. Stimson had been shown to be the defendant’s general superintendent, in absolute charge and control of the defendant’s plant. The declaration made by him to the witness was before the arrest was made, was in encouragement and instigation of it, and tended to show improper motive on his part. When a criminal prosecution is instituted by a corporation through its agent, for a malicious injury to property, the person in its employment who instigated the prosecution, and even made the affidavit of arrest, is not the prosecutor, but the corporation for which lie acted is. — Jordan v. A. G. S. R. R. Co., 81 Ala. 221; 14 Am. & Eng. Ency. Law, 38-40. Corporations are responsible eiviily, the same as natural persons, for wrongs committed by their •officers, servants or agents, while in the course of their employment, or which are authorized, or subsequently ratified. — Jordan v. A. G. S. R. R. Co., 74 Ala. 85; L. & N. R. R. Co. v. Whitman, 79 Ala. 328; Case v. Hulsebush, 122 Ala. 217. The acts, conduct and language of a prosecutor on the day of arrest, are competent for the plaintiff in an action fo,r malicious1 prosecution as tending to establish malice. — Motes v. Bates, 80 Ala. 382, s. c. 74 Ala. 374; Marks v. Hastings, 101 Ala. 172.

3. The witness, Edmondson, testifying for plaintiff, was ashed by him, “Do you know how many men are •employed by the Southern Car & Foundry Company?” Defendant objected to the question, as calling for incompetent, illegal and irrelevant evidence, which objections Avere overruled. The Avitness answered, “About 800,” to which ansAver defendant excepted. He Avas then asked, “What business is defendant engaged in?” Objection on the same grounds as to the last question was interposed by defendant, and overruled. He ansAvered, “Making cars,” to which answer defendant also excepted. The court stated, “The court thinks it proper that the bill of exceptions should here state that the questions [stated above] and the responses thereto, are merely amplifications of proof already made, that defendant was a large concern and doing a large business, to Avlrich defendant made no objection. All the evidence was offered for the purpose of showing the financial standing of the defendant, in case the jury should see fit to give punitive damages, and Aims Umi led by counsel to that phase of the case.”

The question is not neAV iii ibis court. It arose, apparently, for the first time, in the case of Ware v. Cartledge, 24 Ala. 622, where it was held that evidence of Avealth Avas not admissible for the plaintiff in an action of slander, and it is-admitted, that the same rule, if sound, is applicable to a case of malicious prosecution. The court in that- case say: “We are aAvare that in many actions for torts, in which yindietive damages are alloAved to be given by the jury, proof of the Value of defendant’s estate has been allowed to go to the jury, both in England and the United States, but this rule is by no means unii’-ersal. Conflicting authorities on the subject are to be found in English and American books. * * * It would seem, that if such proof is allowable in order to aggravate the damages in such cases, when the defendant is wealthy, common justice would require, that a converse rule should prevail in the case of poor defendants, and they should be allowed to give their poverty in evidence to mitigate the damages''. Yet nearly all the books declare, that this is not the case, and common sense revolts at the idea of its adoption. For, sad would be the fate of that country, whose laws conceded to the insolvent bully, seducer, or slanderer, the privilege of perpetrating his wrongs, with comparative impunity, under the assurance that, when siied for his practices, the damages would be graduated to his present ability to pay them, and consequently would be merely nominal. No sound principle of law tolerates such a practice.” — Adams v. Adams, 29 Ala. 433; Pool v. Devers, 30 Ala. 675; 2 Gr. Ev., § 269. The rule in many, and possibly in the majority of the States is different. — 12 Am. & Eng. Ency. Law (2d ed.), 47; Newell on Mal. Pros. 527. If the question were an open one with us, there could be much said, in favor of allowing such proof; but, we prefer to follow, and not depart from our rulings on the subject, as we have been invited to do. The court erred in allowing the questions to be answered.

There was no room for the affirmative charge as requested by defendant, ’ nor was there error in refusing its charge number 2. If not otherwise faulty, it was misleading in instructing, that Cook had the right to institute the prosecution against the plaintiff.' This assumes, and was calculated to mislead the jury into concluding, that there was no legal wrong in the prosecution. It was also calculated to mislead, wherein it hypothesizes, that “if he swore out the warrant on his own responsibility, and not by the authority or at the instance of defendant,” then they could not find the defendant guilty.. “By the authority or at the instance of defendant,” might be understood to imply, that some formal action on the part of the corporate authorities was necessary, to enable Cook to swear out the warrant of arrest for defendant. Moreover, if the corporation, through any of its managing officers, acting for it ill the line of their duty, in any way aided or abetted in suing out the warrant, the corporation would be liable.

For the. error indicated, the judgment is reversed and the cause remanded.

The opinion heretofore rendered is modified, and the application for a rehearing is overruled.

Reversed and remanded.