Opinion
8 Div. 607.
November 8, 1927. Rehearing Denied March 20, 1928.
Appeal from Circuit Court, Morgan County; James E. Horton, Judge.
Action by Lon New against C. E. Poole, the American Surety Company of New York, and another. From a judgment in favor of plaintiff the named defendants appeal. Reversed and remanded.
The complaint is as follows:
(1) Plaintiff claims of the defendants the sum of $2,000, damages for wrongfully arresting and imprisoning the plaintiff on a charge of larceny on, to wit, April 25, 1925. And plaintiff avers that said arrest was made by the defendant Jody Walker, who was then deputy sheriff, acting for the defendant C. E. Poole, who was then sheriff of Morgan county, Alabama, and that the defendant the American Surety Company was the surety on the official bond of said sheriff. And plaintiff further avers that he was wrongfully arrested in the daytime, and while under arrest was carried to Decatur, and was seen by many people while so under arrest; that he was confined in jail for, to wit, four days; that he was kept from his wife and children. who were left at home by themselves; that he suffered great humiliation and was greatly mortified; that his credit was impaired, and that he lost time out of his crop — all to his damage as aforesaid.
(2) Plaintiff claims of the defendants the like sum of $2,000 damages, in this: On, to wit, April 25, 1925, the defendant C. E. Poole, as sheriff of Morgan county, Alabama, had in hand for execution a warrant of arrest against George New, on a charge of larceny; that at said time the defendant the American Surety Company, was surety on said sheriff's bond; that said warrant was delivered to the defendant Jody Walker for execution, who was then and there acting as deputy sheriff for the said C. E. Poole: that the said Jody Walker, while so acting as deputy sheriff, wrongfully arrested this plaintiff; that said arrest was made at plaintiff's home, near Somerville, Morgan county, Alabama; that plaintiff was carried from his home, and away from his family, to the county jail at Decatur; that a large number of plaintiff's friends and neighbors saw and knew of said arrest; that plaintiff was held in jail, and confined in a prison cell with other prisoners for a long time, to wit, four days; that because of said wrongful arrest, and as a proximate result thereof, defendant [plaintiff] lost time from his crop, to wit, four days; that he was kept from his family; that he was humiliated and mortified, and suffered great mental anguish — all to his damage as aforesaid.
(3) Plaintiff claims of the defendants the sum of $2,000, damages for maliciously and without probable cause therefor causing the plaintiff to be arrested under a warrant issued out of the inferior court of Hartselle, Alabama, on, to wit, April 28, 1925, on a charge of vagrancy, which charge, before the commencement of this action, has been judicially investigated, and said prosecution ended and the plaintiff discharged. And plaintiff avers that said prosecution was maliciously and without probable cause therefor instituted by the defendant Jody Walker, who was then acting as deputy sheriff of Morgan county, Alabama, under the defendant C. E. Poole, who was then sheriff of said county; that said prosecution was instituted by the said Jody Walker under the direction or upon the advice and by the request of the said C. E. Poole, or while acting within the line and scope of his authority for the said C. E. Poole, as deputy sheriff as aforesaid, and that the defendant the American Surety Company, was surety on the official bond of the said C. E. Poole. And plaintiff avers that said arrest was made, and he was carried to prison in the sight of divers persons; that he was incarcerated and held in jail for, to wit, two days; that he was kept away from his family, confined in a cell with other prisoners; that he was kept from work in his crop; that he employed counsel to defend him in said suit, at a great expense; that his credit was impaired; that he was caused to suffer great mental anguish — all to his damage as aforesaid.
(4) Plaintiff claims of the defendants the like sum of $2,000 damages, in this: That on, to wit, April 25, 1925, plaintiff was arrested by Jody Walker, who was then acting as deputy sheriff for the defendant C. E. Poole, under a warrant issued out of the inferior court of Hartselle, Alabama, against George New, on a charge of grand larceny, and was confined in the county jail for, to wit, two days; that the defendants C. E. Poole and Jody Walker then learned that plaintiff was not the man named in said warrant, and thereupon the defendant Jody Walker, while acting for and upon the advice or request of the defendant C. E. Poole, or while acting within the line and scope of his authority as such deputy sheriff, maliciously and without probable cause therefor caused to be issued out of the inferior court of Hartselle, Alabama, a warrant against this plaintiff on a charge of vagrancy, and caused said warrant to be executed; that at said time the defendant the American Surety Company was surety on the official bond of the said C. E. Poole: that said charge, before the commencement of this action and on, to wit, August 21, 1925, has been judicially investigated, and said prosecution ended, and the plaintiff discharged. And plaintiff avers that he was confined in the Morgan county jail for, to wit, two days, under said warrant; that he was required to attend said court; that he lost much time from his crop, to wit, six days; that he employed counsel to defend himself against said charge; that he was kept from his family, and from home; that he was greatly humiliated, and suffered great mental anguish; that his credit was impaired — all to his damage as aforesaid.
A. J. Harris, of Decatur, for appellants.
The averments of counts 3 and 4 are in the alternative. If either alternative is insufficient, the complaint is bad in toto. National Park Bank v. L. N. R. Co., 199 Ala. 192, 74 So. 69; Birmingham R. Co. v. McLeod, 9 Ala. App. 637, 64 So. 193; Fuqua v. Southern R. Co., 201 Ala. 164, 77 So. 690; Davis Allcott Co. v. Boozer, 215 Ala. 116, 110 So. 29, 49 A.L.R. 1307. It was necessary that the complaint aver facts showing that the deputy was acting officially or under color of office in such sort as to bind the sheriff and his bond. Burge v. Scarbrough, 211 Ala. 377, 100 So. 653; People v. Beach, 49 Colo. 516, 113 P. 513, 37 L.R.A. (N.S.) 873; State v. Meyer, 138 Mo. App. 507, 120 S.W. 116; 35 Cyc. 1977. The suit is improperly brought against the surety on the sheriff's bond and against the deputy, who is not a party to the bond. Chamberlain v. Godfrey, 36 Vt. 380, 84 Am. Dec. 694. If the sheriff and his official bond are not liable for an unauthorized action of the deputy at the time of its commission, the sheriff may not thereafter ratify the unauthorized act and fix liability on his bond. Perkins Hopkins v. Reed, 14 Ala. 538. The action of Walker in maliciously and without probable cause swearing out the warrant and causing plaintiff to be arrested was his personal and malicious act. Burge v. Scarbrough, supra; State v. Meyer, supra. The liability of the sheriff for the acts of his deputies is not on the theory of principal and agent or master and servant, but because of the official relation existing between them, and the law defines the duties and imposes the obligations springing from that relation. Lyman v. Holmes, 88 Vt. 431, 92 A. 829; Rogers v. Carroll, 111 Ala. 613, 20 So. 602; Schork v. Calloway, 205 Ky. 346, 265 S.W. 807. A judgment must be reasonably construed. Liverpool London Globe Ins. Co. v. McCree, 210 Ala. 559, 98 So. 882.
John R. Sample, of Hartselle, and Tennis Tidwell, of Albany, for appellee.
Since the judgment entry shows no action on the demurrer filed by all the defendants to the complaint, the court cannot consider this demurrer on appeal. Chemical Co. v. Niles, 156 Ala. 298, 47 So. 239. Walker and Poole, by joining in demurrer, waived and abandoned their original demurrer. R. R. Co. v. Johnson, 135 Ala. 232, 33 So. 661; Grigsby v. Nance, 3 Ala. 347. The sheriff is liable for the official acts of his deputy, and is liable in trespass vi et armis for a trespass of his deputy. The deputy actually making the illegal arrest can be joined with the sheriff for the trespass. King v. Gray, 189 Ala. 686, 66 So. 643; Preuitt v. Neal, Minor (Ala.) 386; Albright v. Mills, 86 Ala. 324, 5 So. 591; Hereford v. Brentz, 192 Ala. 465, 68 So. 350; Rogers v. Carroll, 111 Ala. 610, 20 So. 602; Matlock v. Johnson, 17 Ala. App. 669, 88 So. 182. The bondsmen of the sheriff are liable on his official bond in an action for false imprisonment and wrongful arrest and imprisonment by the sheriff. And the acts of the deputy are the acts of the sheriff. Hereford v. Brentz, supra; Deason v. Gray, 189 Ala. 672, 66 So. 646; Id., 192 Ala. 611, 69 So. 15. The surety is liable for a trespass committed by the deputy, if committed under color of his office. Matlock v. Johnson, supra; King v. Gray, supra; Surety Co. v. Plemmons, 214 Ala. 596, 108 So. 514. The bondsmen of the sheriff are liable in trespass vi et armis for the trespass of the deputy. King v. Gray, supra; Matlock v. Johnson, supra. Each count shows that Walker, in making the arrest, was acting as a deputy sheriff, and it was not necessary to show by the pleadings that Walker was acting within the line and scope of the authority conferred on him by Poole. The arrest was made under color of his office, and this made the sheriff liable for the illegal arrest and false imprisonment. Stephens v. Head, 138 Ala. 455, 35 So. 565; Rogers v. Carroll, supra; Mathis v. Carpenter, 95 Ala. 156, 10 So. 341, 36 Am. St. Rep. 187; Simpson v. Boyd, 212 Ala. 14, 101 So. 664. Count 4 is a sufficient declaration as for false imprisonment. Strain v. Irwin, 195 Ala. 414, 70 So. 734; Buttrey v. Wilhite, 208 Ala. 573, 94 So. 585; Standard Oil Co., v. Humphries, 205 Ala. 529, 88 So. 855. A defendant is liable in an action for malicious prosecution, where he institutes, aids, abets, or ratifies the prosecution. Shannon v. Simms, 146 Ala. 673, 40 So. 574; Gulsby v. R. R. Co., 167 Ala. 122, 52 So. 392; 38 C. J. 396.
C. E. Poole was the sheriff of Morgan county. Jody Walker was one of his regular deputies. The American Surety Company of New York was the surety on C. E. Poole's official bond. Jody Walker arrested appellee wrongfully, without a warrant. Later he swore out a warrant for appellee, purporting to charge him with the offense of vagrancy. The prosecution thus instituted was dismissed. Appellee then brought this suit in four counts against Poole, Walker, and the bonding company jointly. From a judgment in his favor, this appeal is prosecuted by the American Surety Company of New York and C. E. Poole.
The first two counts of the complaint claim, clearly, damages as for false imprisonment, and were not subject to demurrer. Deason v. Gray et al. (two appeals) 189 Ala. 672, 66 So. 646; Id., 192 Ala. 611, 69 So. 15.
There are two sets of demurrers to the complaint incorporated into the record. The first is the demurrer of the defendants Walker and Poole, and in which is incorporated the separate demurrer of the defendant Poole to counts 3 and 4. The demurrer of the defendants Walker and Poole is addressed as follows:
"The defendants Poole and Walker separately and severally for demurrer to the complaint in the foregoing cause and to each count thereof separately and severally assign the following as causes."
The demurrer of the defendant Poole to counts 3 and 4 and incorporated in this demurrer is addressed in this way:
"C. E. Poole demurs to counts 3 and 4 of the complaint separately and severally for that."
This demurrer was filed on November 2, 1925. The second demurrer was filed on the 26th day of August, 1926, by all of the defendants, and it is addressed in this manner:
"The defendants separately and severally for demurrer to the complaint in the foregoing cause and to each count thereof separately assign the following as causes."
Incorporated in this demurrer is the separate demurrer of the defendants Poole and the Surety Company to counts 3 and 4, which is addressed as follows:
"The American Surety Company and C. E. Poole separately demur to counts 3 and 4 of the complaint for that."
The recital in the judgment of the lower court on the pleading is in this language:
"Came the parties by their attorneys, and the defendants, C. E. Poole and Jody Walker, demur to the complaint. And said demurrer being duly considered by the court, it is ordered and adjudged that the same be and it is hereby overruled. Thereupon the defendant American Surety Company waives its plea in abatement and demurs to the complaint, and said demurrer being duly considered by the court, it is ordered and adjudged that this demurrer be and it is hereby overruled."
Upon reconsideration we hold that the above judgment entry does not present for review the action of the trial court, if such action there was, in overruling the separate demurrers of appellants to counts 3 and 4 of the complaint. Polytinsky v. Lindsey, 21 Ala. App. 128, 106 So. 70; Berkowitz v. Farrell, 19 Ala. App. 196, 95 So. 916; Chemical Co. v. Niles, 156 Ala. 298, 47 So. 239; Railway Co. v. Ashley, 159 Ala. 145, 48 So. 981.
Witness J. L. Draper, shown to be the clerk of the circuit court in the county where appellant C. E. Poole was sheriff, was asked the following question by appellee:
"Was C. E. Poole around the office much, or does he leave all that work (referring to the sheriff's office) to his brother Frank?"
The bill of exceptions, next after this question has the following:
"The defendants objection, the court overrules it, and the defendants accepted."
Appellee argues that this objection and exception are unintelligible, and present nothing to us for review. Perhaps so. But immediately succeeding this it appears that the same witness was asked by appellee:
"Is it not a fact that Sheriff Poole had a business — personal business — that he devoted most of his time to at that time?"
Appellants, along with the other defendant, interposed timely objection to this question, which was overruled. They duly reserved an exception, and the witness answered: "Yes, sir."
The action of the trial court described was, we hold, reversible error. Whether or not appellant Poole, the sheriff, had at the time inquired about an outside business to which he devoted a part, or most, of his time did not change or alter in any respect the rule as to his liability vel non in actions of this kind. The testimony admitted was wholly immaterial as to each defendant, and was calculated to be very hurtful, especially as to Poole. For the error in admitting this testimony the judgment will be reversed and the cause remanded.
Other questions, involving only elementary legal propositions, and not being likely to arise on another trial, will not be considered. The opinion hereinabove is substituted for the original opinion in this case, and the application for rehearing is overruled.