Sokol Bros. Furniture Co. v. Gate

MILLER, J. Cora Gate sues Harry Sokol and Nathan Sokol, partners under the firm name of Sokol Bros. Furniture Company, for damages for causing her to he illegally imprisoned. Originally the complaint contained many counts both for false imprisonment and for malicious prosecution. The case was finally submitted to the jury on the fifth count, which was based on illegal imprisonment. The jury returned a verdict in favor of plaintiff, judgment was rendered thereon bj' the eourt, apd the defendants appeal. Demurrers were overruled to count 5. It does not aver how long plaintiff was illegally imprisoned. It does not give the duration of the imprisonment. This is not necessary. It avers she was illegally imprisoned, *109 and caused to be by defendant, and was confined in jail. The duration of the illegal imprisonment relates to the extent of the injury. If she was illegally imprisoned for j one moment, this would give a cause of action. This'count charges defendants caused her to be illegally imprisoned on February 1, 1917, and as a proximate consequence of said Illegal imprisonment “she was taken through the streets, * * * confined in jail,” etc. It states a cause of action; and the demurrers to it were properly overruled by the court. Strain v. Irwin, 195 Ala. 414. headnotes 4, 5, 6, 7 and 8/ 70 South. 734. Errors assigned, but not insisted on in brief, will not be considered by this' court; and when appellant states that a charge given “was not merely argumentative, but erroneous," that is not sufficient insistence in argument to make it the duty of this court to review it. Hodge v. Rambo, 155 Ala. 175, 45 South. 678: Carter v. O’Bryan Bros., 105 Ala. 305, 16 South. 894. The parties agree this charge was not correctly copied in the original transcript. They agree in writing that, as it was given by the court at the request of plaintiff, it read as follows: “Malice is not necessary to make out a case of false imprisonment, but if a case is made out and malice exists, that may affect the measure of damages. Malice need not consist of ill will toward the person imprisoned, but malice in law may be any improper and illegal motive for causing the imprisonment.” Malice is not a material, not an essential, ■ element of false imprisonment, “except in aggravation of damages.” Rich v. McInerny, 103 Ala. 345, 15 South. 663, 49 Am. St. Rep. 32; Murphy v. McAdory, 183 Ala. 209, 62 South 706. Malice does not necessarily consist of ill will toward the person imprisoned. Lunsford v. Dietrich, 93 Ala. 565, 9 South. 308. 30 Am. St. Rep. 79. “Whatever is done willfully and purposely, whether the motive be to injure the accused, to gain some advantage to the prosecutor, or through mere wantonness or carelessness, if it be at the same-time wrong and unlawful within the knowledge of the actor, is in legal contemplation maliciously done.” Lunsford v. Dietrich, 93 Ala. 565, headnote 3, 9 South. 308, 30 Am. St. Rep. 79. This charge contains a correct statement ■of the law, and the court properly gave it to the jury. Parisian Co. v. Williams, 203 Ala. 379, 83 South. 122; Gulsby v. L. & N. R. Co., 167 Ala. 122, 52 South. 392. The court refused charges requested by defendant as to sections 690 and 1440 of the City Code of Birmingham. These ordinances have no application to the facts of this case. 'The charges were abstract, and their refusal was not error. Long v. Myers, 202 Ala. 238, headnote 9, 80 South. 76. Sections 7342, 7343, 6935, and 6937 of the Criminal Code of 1907, and sections 824, 691, 818, and 819 of the Criminal Code of Birmingham, were in separate written charges quoted and requested by the defendant to be given the jury. As requested, these charges made no attempt to apply those sections to the facts of the case, and were therefore calculated to confuse and mislead the jury. In the form! requested they were abstract. They were not made applicable to the facts of the case. The court did not err in refusing them. Long v. Myers, 202 Ala. 238, headnote 9, 80 South. 76. The defendant requested this charge which was refused by the court: “The court charges the jury .that the burden of proof is on the plaintiff to show to the reasonable satisfaction of the jury by the evidence that the plaintiff was arrested, and that the defendants caused said arrest, and that said arrest was unlawful, before they can find in favor of the plaintiff.” There are three defendants, the two partners and the partnership ; the charge pretermits a recovery for plaintiff against any one of the defendants unless the plaintiff was arrested and her arrest was caused by all of the defendants and her arrest was unlawful. The jury might have been satisfied from the evidence that one of the defendants, and not all of them, caused her arrest, that it was unlawful, and that she was unlawfully imprisoned, and a verdict could have been found against such defendant. Hence this charge was obviously erroneous. The jury might have been satisfied from the evidence that plaintiff was entitled to recover against one, but not all, of the defendants, and thus return a verdict againbt one and not all. These written charges were separately requested by the defendants, and each was refused by the court: “The court charges the jury that to constitute an arrest there must be some real or pretended authority for taking a person into custody, and that a forcible seizure of one’s person without any pretense of taking him into legal custody does not amount to an arrest.” “The court charges the jury that an arrest must be for some real or pretended offense against the law, and that the forcible seizure or detaining of one’s person without any real or pretended charge of some real or pretended offense against the law made against the person so seized or detained, does not constitute an arrest.” This suit in count 5, theJ only one submitted to the jury, is based on a charge of “false imprisonment” caused by the defendants. In Rich v. McInerny, 103 Ala. 345, 15 South. 663, 49 Am. St. Rep. 32, this court wrote: “False imprisonment is the unlawful restraint of a person contrary to Ms will. But two things are requisite, viz.: detention of the person and unlawfulness of such detention.” These charges are not only misleading and confusing, but they do not state the law cor *110 rectly as applicable to this case. A person can be arrested or imprisoned in a manner to constitute a cause for false imprisonment without the person arresting or imprisoning him having any real or pretended authority for taking the person into custody. If there is a detention of the person by another, and that detention is unlawful, this will constitute a false imprisonment of the person. Rich v. McInerny, 103 Ala. 340, 15 South. 663, 49 Am. St. Rep. 32. But when the false imprisonment is based on false imprisonment in jail by an officer after arrest, then for it to be false imprisonment under the evidence, there must have been an illegal arrest. “An arrest is an imprisonment.” Cent. of Ga. R. Co. v. Carlock, 196 Ala. 659, 72 South. 261; Rich v. McInerny, 103 Ala. 345, 15 South. 663, 49 Am. St. Rep. 32; Strain v. Irwin, 195 Ala. 415, headnote 4, 70 South. 734. These charges do not define or attempt to define a legal arrest. One of the questions in this case is, Was the plaintiff legally arrested, and thereby legally imprisoned, or was she illegally, falsely arrested, and thereby falsely imprisoned? And if she was illegally arrested and thereby falsely imprisoned, was it caused by the defendants or either of them? These are the material inquiries in this case. This charge, requested by defendant, was refused by the court: “The court charges the jury that if they believe that the defendants had probable cause to believe plaintiff committed a felony, and made complaint to a police officer, and that the police officer arrested the plaintiff for such felony, then the plaintiff would not be entitled to recover for the false imprisonment.” It fails to state if the jury believe “from the evidence,” etc. The charge fails to hypothesize that a felony had actually been committed. We find no evidence indicating • that defendants had probable cause to believe plaintiff had committed a felony, and no evidence that a police officer arrested plaintiff for such felony. This charge is abstract, not based on evidence or the tendency of evidence in the case, and urns properly refused. Rich v. McInerny, 103 Ala. 345, 15 South. 663, 49 Am. St. Rep. 32; Long v. Myers, 202 Ala. 238, h. n. 9, 80 South. 76. This charge requested by defendants was refused by the court: “Before yon can find against the defendants for false imprisonment you must be reasonably satisfied from the evidence that the arrest of the plaintiff was illegal.” If the arrest is illegal, then the imprisonment is illegal, false imprisonment. If the arrest is legal, then the imprisonment thereby is not false, not illegal. The plaintiff’s own testimony shows her arrest by the police officer. Her arrest was clearly shown without dispute. It was not made any part of the contention of the parties; count 5 mentions the arrest. Hence this charge under the evidence was not defective in assuming, without hypothesis, that she was arrested. Carter v. Chambers, 79 Ala. 227; Ala. Power Co. v. Hines, 207 Ala. 346, 92 South. 611. The complaint, count 5, claims damages for illegal imprisonment, and avers “as' a proximate consequence of said illegal imprisonment, plaintiff was taken through the streets of the city of Birmingham; was confined in jail,” etc. It also avers she was put to great expense in procuring her release “from said arrest.” The undisputed evidence discloses that she was carried through the streets of the city of Birmingham by a police officer, and was confined in the city jail by a police officer of the city. This charge under this evidence states a correct principle of law applicable to this case. Her confinement in jail by the officer and the carrying of her through the streets by the officer would not be false imprisonment under the evidence and allegations of the count, unless her arrest by the officer was illegal. This charge has been approved in practically these words by this court in Sanders v. Davis, 153 Ala. 375, h. n. 14, 44 South. 979; Strain v. Irwin, 195 Ala. 414, headnote 4, 70 South. 734. The same statement of the law or the same rule of law was not substantially and fairly given to the jury in the court’s general charge or in charges given at the request of the parties. Section 5364, Code 1907, as amended Gen. Acts 1915, p. 815. Hence the refusal of this charge by the court was reversible error. Standard Oil Co. v. Humphries, 205 Ala. 529, 88 South. 855. The errors assigned and discussed on the evidence admitted and rejected will hardly arise on another trial .in the form now presented, if at all; hence no necessity exists for us to pass on them. For the error mentioned the case is reversed and remanded. Reversed and remanded. ANDERSON, C. X, arid ' McCLELLAN, SAYRE, and THOMAS, JX, concur. SOMERVILLE and GARDNER, JJ„ dissent.