Opinion
35091.
DECIDED JUNE 22, 1954.
Damages. Before Judge Atkinson. Chatham Superior Court. January 5, 1954.
Bouhan, Lawrence, Williams Levy, for plaintiffs in error.
Sullivan Maner, contra.
1. The special demurrers to the allegations of loss sustained by the plaintiff, because of being forced into bankruptcy as a result of the defendants' tortious conduct, on the ground that such loss was too remote and speculative to be recovered, were properly overruled, since it did not appear that the plaintiff was seeking to recover such losses as items of special damages.
2. None of the special grounds of the motion for a new trial show harmful error. The charge of the court was substantially correct and covered the issues involved with sufficient fullness and fairness to the defendant, and the trial court did not err in denying the motion.
DECIDED JUNE 22, 1954.
Frank H. Wegner sued Atlantic Coast Line Railroad Company and J. E. Redish for damages, his petition, as finally amended, being in two counts, one being for malicious prosecution, and the second count being for false arrest. The first count, omitting formal parts, alleged substantially: that the defendant railroad, on June 6, 1952, accused the plaintiff of the offense of larceny of its property; that on June 7, 1952, plaintiff was by reason of said accusation and in pursuance thereof, presented before the Recorder's Court of Chatham County; that he was found not guilty in the Recorder's Court, of the offense of larceny, but, because of the malicious charges made against him at the instance of the defendants, he was bound over to the City Court of Savannah for the offense of being an accessory after the fact of larceny; that said accusation was made by the defendant railroad through the defendant Redish; that, at all times referred to in the petition, the defendant Redish was acting as the authorized agent and employee of the defendant railroad and was acting within the scope of and in the course of his employment with the defendant railroad; that said accusation was false and plaintiff was innocent of the charges, and on July 22, 1952, a nolle prosequi was entered on the accusation which had been made against him by reason of the false charges of the defendants; that said action of the defendants was without probable cause, was malicious, and was in reckless disregard of the plaintiff's rights after the defendants had notice of the plaintiff's innocence; that the defendants are jointly and severally responsible for the injuries done to the plaintiff; that the said tortious acts directly resulted in and were the proximate cause of the plaintiff's injuries; that the false, reckless, slanderous, insulting, and abusive public accusations made by the defendants against the plaintiff exposed him to and resulted in great mortification and embarrassment to him; that, as a result of the said torts of the defendant, the plaintiff lost four days from his business as a painting contractor, representing a financial loss to him of $25 per day; and that, as a further result, plaintiff expended $250 for attorney's fees and $15 for bondsman's fee. Paragraph 9 of count 1, as amended, alleged: "Plaintiff shows that the defendants' torts forced the plaintiff into bankruptcy by reason of the fact that the defendants' torts caused an actual financial loss to the plaintiff in excess of $300, as shown in the petition, and left the plaintiff without funds to meet his current expenses and pay his obligations. It was then necessary for him to bankrupt in order to avoid a multiplicity of law suits against him by his creditors. By reason of the plaintiff's inability to pay his creditors on the account of defendants' torts, said creditors had threatened said law suits, and it was pursuant to said threats and to avoid said law suits that said bankruptcy was filed, all of which was a direct result of the plaintiff's depleted financial conditions caused by defendants' torts: . . . that the further financial loss resulting to the plaintiff by reason of the said bankruptcy, was the court cost in said bankruptcy in the amount of $40, plus attorney's fees in the amount of $100, which fee was paid over a period of time, subsequent to filing said petition in bankruptcy."
Count two of the petition, which was based on false imprisonment, alleged, in addition to the allegations of count one, that, following the accusation made against the plaintiff by the defendant and by reason thereof, the defendants unlawfully detained the plaintiff and deprived him of his personal liberty for a period of two hours during the afternoon of said date; and that the defendants caused his unlawful detention in the common jail of Chatham County for a period of two hours on the same afternoon and until he was released on bond; and that said false imprisonment was without probable cause and was in reckless disregard of the plaintiff's rights after the defendants had reasonable notice of the plaintiff's innocence.
The defendants demurred generally and specially to the petition and to the petition as amended, and all grounds of demurrer which were not considered as cured by subsequent amendments were overruled. To the order of the court overruling the demurrers to the petition as finally amended the defendants filed exceptions pendente lite, upon which error is assigned in the bill of exceptions.
The defendants filed an answer, in which they admitted the arrest and prosecution, but denied the material allegations of the petition as to their liability therefor. They specially pleaded that the defendant Redish acted in the said matter as a duly commissioned special police officer in furtherance of his duty as such to protect the defendant railroad's property; and that the arrest was lawfully made and was not unlawful but was made in good faith and was justified by the circumstances, and the prosecution was not malicious but was in good faith and with probable and reasonable cause.
Upon the trial of the case the jury returned a verdict for the plaintiff on the second count for $5,690. The defendants made a motion for new trial which was amended by the addition of nine special grounds. The trial court denied the motion, and the defendants filed their bill of exceptions, complaining of that order and also assigning error on the exceptions pendente lite. The general grounds of the motion and the first special ground are expressly abandoned by counsel for the plaintiff in error in this court.
1. In their brief before this court counsel for the plaintiffs in error expressly abandon all grounds of general and special demurrer except the demurrers to the allegations of the petition respecting the bankruptcy of the plaintiff. These allegations were demurred to in the following language (as to count 1): "Defendants demur to and move to strike all damages and expenses set forth in paragraphs 19 [as amended] on the grounds that said expenses and damages are remote and speculative and are not shown to have been the proximate result of the alleged tort", and (as to count 2): "Defendants demur to and move to strike all damages and expenses set forth in paragraphs 19, 20, 21, and 22 of count two, on the ground that said expenses and damages are remote and speculative and are not shown to have been the proximate result of the alleged tort." These grounds of demurrer were without merit and were properly overruled. While the allegations of the amended petition set forth in some detail the matter respecting the plaintiff's bankruptcy and the expenses consequent upon it and tended to connect such damages with the alleged false imprisonment and malicious prosecution, it is quite apparent that the plaintiff did not sue for such damages at all. The original petition alleged that he lost four days time from his work, which time he valued at $25 per day; that he expended $250 as attorney's fees for defending the arrest and prosecution, and $15 as bondsman's fee; and immediately following the paragraphs setting up these actual damages, the petition alleged that, "As a further result of defendants' torts and of the aforesaid resulting cash losses to the plaintiff, the plaintiff was forced on July 1, 1952, into bankruptcy, causing further mortification, embarrassment, and financial loss to the plaintiff"; and then in the final paragraph of the original petition, the plaintiff sets up that he "sues for his actual cash loss in the amount of two hundred sixty-five ($265.00) dollars, for his actual loss of wages in the amount of one hundred ($100.00) dollars, and for general damages." Then the prayer for damages in the amount of $10,000 follows. The amendment, while setting up the loss resulting from the bankruptcy in some-somewhat more detail, did not change the specification of actual damages set forth in the original petition, nor the prayer thereof. For these reasons it was not apparent that the plaintiff sought actual damages on account of the alleged bankruptcy, and consequently the demurrer to the allegations respecting the bankruptcy, on the ground that such damages were remote and speculative, was without merit and the trial court did not err in overruling that ground of demurrer.
2. In the second special ground of the motion for a new trial, the defendant contends that the court erred in refusing to give the following requested instruction to the jury: "I charge you that under the law of Georgia, the Governor may appoint special officers of a railway company for the protection of the property and interest of the company and with powers to make arrests. Under the law of this State special officers so appointed are vested with all the powers, duties and responsibilities of sheriffs or other law enforcement officers of the State while engaged in the performance of their duties as railroad officers. Ga. Laws 1935, p. 465." This contention is not meritorious. This instruction did not relate to any issue raised by the pleadings or the evidence. While the defendant pleaded that Redish was a special officer commissioned by the Governor and empowered to investigate crimes and make arrests in connection with the defendant railroad's business, this was not disputed by the plaintiff anywhere in the trial of the case. Redish himself testified that he was commissioned as a special officer, exhibited his commission or warrant, and, so far as his testimony on cross-examination reveals, was not questioned by the plaintiff as to this point at all. In view of this state of the evidence, it is difficult for us to see how the giving of this charge would have materially aided the jury in their investigation of the issues made, or how the failure to instruct the jury in accordance with this request was harmful to the defendant so as to require a new trial. See Metropolitan R. Co. v. Johnson, 90 Ga. 500 (5) ( 16 S.E. 49); Atlantic Coast Line R. Co. v. Anderson, 75 Ga. App. 829, 831 (2) ( 44 S.E.2d 576).
3. The defendants' counsel requested the court to instruct the jury as to the meaning of probable cause in actions such as this, in the following language: "I charge you that probable cause may consist of reasonable grounds of suspicion supported by circumstances sufficiently strong in themselves to warrant a reasonable man in the belief that the person arrested is guilty of the crime for which he is arrested." The trial court refused to so instruct the jury, and the defendant, in special ground 3 of the motion, complains of such refusal.
The court in its general charge instructed the jury: "I wish to charge you that, in making out a case, the burden will be upon the plaintiff to prove malice and [the want of] probable cause; . . . malice consists of personal spite or any general disregard of the right consideration of mankind directed by chance against the individual injured. In an action to recover damages for malicious prosecution . . . it must appear that the defendants prosecuted the plaintiff maliciously and without probable cause. A right of action for a malicious prosecution exists only when the prosecution is the result of a desire to injure the accused; and in such an action malice against the accused may be inferred from lack of probable cause, but the want of probable cause will not be inferred even though malice is shown to have existed. I charge you that, under the law of this State, relating to actions for malicious prosecution, it is not necessary for the prosecutor to be fully satisfied of the truth of the charge, nor is it required of him to guarantee a conviction upon the charge made if he has probable cause for the arrest and prosecution. Want of probable cause shall be a question for the jury and shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused." All of the foregoing quoted charge related to the first count of the petition, which sued for malicious prosecution.
As to the second count, for false imprisonment, the court also charged the jury that "an arrest may be legal, even though no crime was actually committed, if there were reasonable grounds on the part of such arresting officer for believing that the law was being violated and where the circumstances were sufficient to give the officer of the company making the arrest probable cause for believing the crime was being committed." Under the circumstances and in view of the quoted charges, the jury could not well have misunderstood the meaning of the term "probable cause," and the trial court did not commit reversible error in refusing to instruct the jury as complained of in the third special ground of the motion.
4. The fourth special ground complains of this instruction: "An arresting officer may arrest any person charged with crime upon a warrant issued by a judicial officer; now, if you do not think Mr. Redish was acting as an officer at that time, but as a private citizen, I charge you this: a private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge, or if the offense is a felony and the offender is escaping — well, this was not a felony — a private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge."
It is contended that this portion of the charge was error because it injected into the case an issue not made by the pleadings or the evidence, namely whether or not Redish acted as an officer or as a private individual in arresting the plaintiff. This ground of the motion is without merit, for the reason that it does not show how or wherein the defendant was harmed by this portion of the charge. A charge must be not only erroneous but harmful before a new trial will be granted because of it. Harrison v. Hester, 160 Ga. 865 (3) ( 129 S.E. 528). It is not disputed that the arrest in this case was made without a warrant, and under the evidence the only basis for the arrest without a warrant was that the crime was being committed in the presence of the person making the arrest. There was no intimation or suggestion that the plaintiff was endeavoring to escape or that there was likely to be a failure of justice for want of an officer to issue a warrant. Whether the defendant Redish acted as an officer or as a private citizen was immaterial, since his authority as either was the same, so far as the circumstances disclosed by the evidence were concerned. Code §§ 27-207, 27-211. The charge injecting this issue in the case could not, then, have been confusing to the jury or harmful to the defendant, and for these reasons special ground 4 of the motion does not show error. See Martin v. Gibbons, 14 Ga. App. 136 (1) ( 80 S.E. 522).
5. Error is assigned in special ground 5 of the motion on the following charge: "In every case of an arrest without a warrant, the person arrested shall without delay be conveyed before the most convenient officer authorized to receive an affidavit and issue a warrant; no such imprisonment shall be legal beyond a reasonable time; if he is arrested without a warrant he must be taken before some officer who can give him a hearing and commit him to bail, and, if that was not done, why, then the company would be liable; if it was done Mr. Redish and the company would not be liable, provided the offense was being committed or was in the act of consummation, and this was in the presence or the immediate knowledge of Redish."
This instruction was not erroneous on the ground, as contended by the plaintiff in error, that it injected an issue not made by the pleadings or the evidence, namely, whether the plaintiff was promptly taken before a judicial officer and a warrant procured and the plaintiff committed to bail. The plaintiff's evidence showed that the defendant Redish did in fact arrest him at the spot where the alleged theft of the defendant railroad's property had taken place, which spot was some distance out from the center of Savannah, that the plaintiff was then taken by Redish to the defendant railroad's offices in downtown Savannah and interrogated for an hour or two before he was taken to the police station, booked, and a warrant issued. While no express issue was made as to the length of time between the arrest and the time when the warrant was sworn out, the jury were authorized to infer from such evidence that there was an unreasonable delay and to award damages in the plaintiff's behalf based to some extent, at least, on that account. In no view of the case could the injection of this issue have been prejudicial or harmful to the defendants, because, in the first place, the charge was really more favorable to the defendants than they were entitled to, inasmuch as they were not relieved of liability on the false-imprisonment count merely by showing that Redish had promptly taken the plaintiff before a magistrate and procured a warrant, though the charge complained of so instructed the jury. If the arrest and imprisonment were illegal in their inception, no amount of promptness on Redish's part in taking the plaintiff before a magistrate and procuring a warrant could legalize them.
6. The sixth special ground assigns error on a portion of the charge, on the ground that it instructed the jury that the rules given in charge relating to the power of the defendant Redish to arrest the plaintiff without a warrant would not be applicable unless the plaintiff had actually committed a crime, whereas the true rule is that such rules were applicable so long as Redish had reasonable grounds for believing that the law had been or was being violated by the plaintiff or that the circumstances were sufficient to warrant a reasonable man in believing that the person arrested was guilty of the crime for which he was arrested.
This portion of the charge was as follows: "Now, gentlemen, that all presupposes that the defendant had committed the crime of taking these goods, that he had taken the goods illegally from the shipyard with intent to steal, that is, not the defendant [plaintiff?] but his associate had, and he had come into the picture later by bringing his truck, knowing or having reasonable cause to know that they were stolen, and he was assisting in the transportation to complete the larceny." Immediately following that portion, the court instructed the jury: "I charge you that, where a committal court binds over the defendant for trial on the crime charged, such fact constitutes prima facie, but not conclusive evidence that probable cause for the prosecution exists. I charge you that an arrest for a crime may be made by an officer without a warrant if an offense is made in his presence, or if for other cause there is likely to be a failure of justice for the want of an officer to issue a warrant; and I charge you further that an arrest may likewise be made when the crime is committed within the immediate knowledge, though not in the actual presence, of the officer making the arrest. I charge you that an arrest may be legal, even though no crime was actually committed, if there were reasonable grounds on the part of such arresting officer for believing that the law was being violated and where the circumstances were sufficient to give the officer of the company making the arrest probable cause for believing the crime was being committed." Thereafter, the court again instructed the jury that "An arrest may be legal even though no crime was actually committed if there was reasonable ground on the part of such arresting officer for believing that the law was being violated and where the circumstances were sufficient to give the officer of the company making the arrest probable cause for believing the crime was being committed." When read in its context, this charge was not erroneous for any of the reasons assigned. The jury could not have misunderstood the law that an arrest is not necessarily rendered illegal merely because no crime has been committed.
7. The 7th special ground complains and contends that the verdict included special damages which were not recoverable in an action for false imprisonment. The verdict was in the following language: "We, the jury, find for plaintiff on the second count and find damages as follows: . . . On the first count none, and on the second count, $5,690. This Oct. 5, 1953." This verdict was merely a general one, and it is not apparent what proportion of it was special and what proportion of it was general. This ground of the motion does not show whether or to what extent the verdict included special damages or what special damages were found. This ground of the motion is without merit, and the trial court did not err in overruling it.
8. The plaintiff alleged in his original petition three items of special damages for which he sued. These items are enumerated in the first division of this opinion and will not be repeated here. The plaintiff himself testified to his loss of $25 per day for four days in earnings from his business, and also to his expenditure of $15 for bondsman's fee, and his attorney testified to his charge of the plaintiff of $250 as counsel fees in defending the plaintiff as defendant in the criminal case, and also as to the reasonableness of such charge. This evidence was not disputed by the defendant in any particular, and consequently, if a verdict for the plaintiff was authorized on other issues in the case, a verdict for him in those amounts as special damages was demanded. It follows that the portion of the charge respecting those items of special damages, complained of in special ground 8 of the motion, to the effect that "there has been evidence to sustain them here," was not erroneous as amounting to an expression of opinion on the part of the court as to what had been proved by the plaintiff. This instruction amounted to no more than the direction of the verdict in favor of the plaintiff as to those items of damages; and where it was properly qualified by the proviso that the jury should otherwise find that the plaintiff was entitled to recover, and where the evidence as to those items was not disputed, the court did not err in instructing the jury that such items were proved and should be awarded to the plaintiff if they found them to be reasonable.
9. Complaint is made, in the final special ground of the motion for new trial, because the court, at the conclusion of its charge and after a colloquy between counsel for the parties and the court, instructed the jury that "it is not necessary for the plaintiff to prove that there was no probable cause for his arrest if he was arrested illegally; the burden is not on him to prove the want of probable cause, but that can be considered in defense of the action and in mitigation of damages." This instruction stated an accurate and correct principle of law which was pertinent and applicable to the issues made by the pleadings and the evidence. Westberry v. Clanton, 136 Ga. 795 (4) ( 72 S.E. 238); Duckett Co. v. Ozmer, 48 Ga. App. 41 ( 172 S.E. 118); Conoly v. Imperial Tobacco Co., 63 Ga. App. 880, 888 (2) ( 12 S.E.2d 398). This instruction was not, then, misleading and confusing to the jury or harmful to the defendant, nor did it have the effect of removing from the jury's consideration the previous charge as to whether the arresting officer had reasonable grounds for believing that the law was being violated, and that the circumstances were sufficient to give him probable cause for believing that a crime was being committed by the plaintiff. The trial court did not err in overruling this ground of the motion.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.