Fuqua v. Gambill

TYSON, J. Tbe complaint contains sis counts. 1, 3 and 5 are for false imprisonment. Counts 2, 4 and'6 are for malicious prosecution. There was a verdict and judgment for plaintiff, appellant here. The first assignment of error is predicated upon the ruling of the court in overruling a demurrer to special plea numbered 4 interposed to the counts for false imprisonment whereby the plaintiff was forced to take issue upon it. The averments of that plea are that plaintiff had violated an ordinance of the city of Birmingham prohibiting the sale of milk without having first paid for and taken out a license so to do, and that he was arrested by one Boggan for that offense under and by virtue of a warrant issued out of the Inferior Criminal court of said city having the power and jurisdiction to issue it, and that Boggan was clothed with the authority to execute the warrant. The averment that the plaintiff violated the ordinance was the affirmation of the fact that the ordinance was a valid one. If the ordiance was invalid, and the court so instructed the jury as the record shows it did at the written request of the plaintiff, we are unable to see how the overruling of the demurrer, if error, was prejudicial to the plaintiff. The plaintiff should have been allowed to show the condition of the prison in which he was confined as to cleanliness or odors.—Abrahams v. Cooper, 81 Pa. St. 232; Fenelon v. Butts, 53 Wis. 344; 19 Am. & Eng. Ency. Law, (2d ed.) 702. It is next insisted that the affirmative charge requested by plaintiff upon each of the counts for- false imprisonment should have been given. All other considerations aside, suffice it to say that each of the counts contained the averment that the arrest and imprisonment were malicious and without probable cause. While this averment was unnecessary, these elements must be shown by plaintiff to have existed before he can recover. Rich v. McInerny, 103 Ala. 345. The existence of malice is always a question for the jury.—3 Mayfield’s Digest, §193. Written charges 4 and 5 requested by the plaintiff were also .properly refused. It is a sufficient condemna469 fcion. of them to say that they pretermit all reference to whether the defendant entertained malice at the time he caused the arrest of plaintiff. Since the jury fonnd for the plaintiff no possible injury could have been suffered by him for the giving of the two written charges requested by the defendant, even if it he conceded that they are erroneous. For the error pointed out the judgment must be reversed and the cause remanded.