Abraham Clark Freeman.

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public^ who have a right to be warned of approaching trains, for
their personal protection**: Louisville etc. R. R. Co. v. Hall, «7
Ala. 718; 13 Am. St. Rep. 84; Nashville etc. R. R. Co. v. Honi-
bree, 85 Ala. 481; Alabama etc. J{. R. Co. v. Hawk, 72 Ala. 1 \2;
47 Am. Rep. 403. The defendant owed plaintiff's intestate no
duty to blow the whistle at the public crossing. If the post with
the letter 'TV** was at the place testified to by some of the wit-
nesses, and required the engineer to blow before entering the
curve, his 'failure to blow would be negligence. The failure to
blow at the public crossing or at the post, havinp no knowledge
of the presence of plaintiff's intestate, would be simple negli-
gence, no more: Georgia Pac. Ry. Co. v. Lee, 92 Ala. 262; High-
land Avenue etc. R R. Co. v. Sampson, 91 Ala. 660.

Was the plaintiff's intestate guilty of contributory negligence F
On this point the following rules of the company were introduced
in evidence: ^^As no signals are carried for extra trains, foremen
must use the utmost care in running their hand-cars over the road.
Curves and other dangerous places must be flagged. A constant
lookout must be kept.** ''Extra trains may be expected at any
moment, and section foremen must always be prepared to meet
them.** These rules were known to deceased, and without con-
tradiction it is shown that the *''* train was an "extra train,** that
deceased did not observe the rule and put out a "flag** at the curve,
as required by the rule; that if the curve had been properly flagged
the engineer would have had time and space within which to
stop the train before reaching the point of collision. Under this
evidence the deceased was guilty of negligence himself: Rich-
mond etc. R. R. Co. V. Hammond, 93 Ala. 181.

Thus far we have not referred to the evidence by the witnessea
for the plaintiff and defendant which shows that there were five
persons on the hand-car, all of whom jumped safely off the hand-
car. If it be true, as testified to bv some of the witnesses, both
for the plaintiff and defendant, that the deceased escaped the
peril of a collision by jumping from the hand-car, and was in a
safe position, and voluntarily returned to the hand-car, and, in an
endeavor to get the hand-car from off the track, was caught by it
end held until the freight train collided and ran over deceased.



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Noy. 1893.] Louisvillb etc. R. R. Co. v, Markbs. 29



«nd it was not possible^ by the use of all reasonable preventiye ef-
fort, to stop the train so ns to prevent a collision after the deceased
returned to the hand-car, under no principle of law can the de-
fendant be held liable for a neglect of duty by the engineer.

The trial court cannot be put in error for not charging upon the
effect of evidence ex mero motu. The statute is positive (Code,
1886, sec 2754), and certainly the defendant cannot complain of
a charge given at its request: Louisville etc B. B. Co. y. Hnrty
101 Ala. 34.

The evidence shows that deceased left a wife and two children;
that he was receiving forty dollars a month; 'Hhat he appropriated
his wages to the comfort and support of his family." '^t took all
his wages to support himself and his family." 'That it took
about five dollars a month to clothe himself, and about ten or
twelve dollars a month to feed himself." We believe this to he
all the evidence on this point We are of opinion that the case is
brought fairly within the principle declared in Louisville etc B.
R. Co. T. Trammell, 93 Ala. 350; that it involves a dependent re-
lationship and no pecuniary intere8t,'ezcept by way of support and
maintenance. In the oral charge the court instructed the jury as
follows: '^f the case should appear to be one where the deceased
would have, in addition to assisting in the support of the next of
kin, accumulated an estate which would have gone to them *^
at his death, that might be taken into consideration in measur-
ing the pecuniary loss," etc. The principle of law here stated
may be correct, but we fail to find any evidence to which it could
be referred. It was abstract and misleading, and, though this
court will not reverse a case for an abstract charge asserting a
correct principle, unless it is manifest that injury resulted, it ia
the safe rule to omit or refuse instructions of this character.

Where there are so many exceptions as appear in the present
record, we can do no more than declare general principles of law,
which govern them, and leave their application to the trial court
This, in our opinion, has been done with sufficient care in the case
before us.

Reversed and remanded.



NEGLIGENCE— PLEADING.— A complaint chartring negligence in
general terms is good on demnrrer: Mississinewa Min. Co. v. Patton,
1» Ind.472; 28 Am, St. Bep.203; Ohio etc. Ry. Co. v. Walker, 113 Ind.
196; 3 Am. St. Rep. 038. See, also, the note to Holland Y. Bartch, 16
Am. St. Rep. 313.

NEGLTGKNCE. CONTRIBUTORY— WHEN NOT A DEFENSE.—
The contributory neulipence of the plaintiff does not preclude his re-
covery when the conduct of the defendant it wanton and willful, or



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30 PuQH V. Davts. [Alabama,

wliereit indicates that negligence or indifference to the rights of othera
which mast juptlj be characterized as recklessness: McDonald v. iDte^
national etc. By. Co., 86 Tex. 1; 40 Am. St. Bep. 803, and note with
the cases collected.

RAILROADS-SIGNALS AT CROSSING -FAILU RE TO GIVE,
WHEN NOT LIABLE FOR.— Where the servants in charge of a train
fail to ring the bell or blow the whistle, and such failure could not have
been the cause of the accident, it is proper to so instruct the jury, and
to tell them that the company cannot, because of such failure, be held
answerable for the accident: McDonald y. International etc. Kv. Co.,
86 Tex. 1 ; 40 Am. St. Rep. 803, and note. The requirement that an
engineer shall blow a whistle or ring a bell before reaching a public
road or crossing is for the protection of persons who being at a croes-
ing are about to pass across the track. Hence, a brakeman, injured at
a croRsing, cannot recover therefor on the jj^'ound that the failure to
give such signals left him without warning of the approach of the train,
and thereby caused him to be injured: Louisville etc. Ry. Co. v. Hall,
91 Ala. 112; 24 Am. St. Rep 863. See the discussion of this subject
in the extended note to Gilson v. Delaware etc. Canal Co , 36 Am. St.
Rep. 817, and the notes to Quigley v. Delaware etc. Canal Co., 24 Am.
St. Rep. 507; Heddles v. Chicago etc. Ry. Co.. 20 Am. St. Rep. 114;
Louisville etc. R. R. Co. v. Hall. 13 Am. St. Rep. 93, 94.

INSTRUCTIONS-WHEN CANNOT BE COMPLAINED OP.— A
•party cannot complain of an instruction as erroneous when it was
given at his request and contains the same vice:-Hazell v. Bank, 95 Mo.
60; 6 Am. St. Hep. 22. Litigants cannot be deprived of their rieht to
except to instructions by the court, unlees they have expressly re-
quested them: Wilbur v. Stoepel, 82 Mich. 344; 21 Am. St. Rep. 568.
Instructions to the jury on abstract propositions of law are improper:
Bowen t. Clarke, 22 Or. 566; 29 Am. St. Rep. 626,



PuGH V. Davis.

[lOS ALABAMA, SIA.]

UNLAWFUL DETAINER.— THE FACT THAT A LANDLORD
HAS BEEN DEIR[VED OF HIS TITLE since the making of a
lease, by the foreclosure of a mortirage previously executed, is not
available as a defense to an action of unlawful detainer, though the
tenant has attorned to the purchaser at the foreclosure sale.

Action by Davis against Pugh in unlawful detainer to recover
posseBsion of leased premises. Judgment for the plaintiff. De-
fendant appealed.

Caldwell Bradshaw and James E. Webb^ for the appeUani

Sayre & Pearson, contra.

■*'' HARALSON, J. This was an action of unlawful detainer,
commenced before a justice of the peace to recover possession of
lands alleged to have been unlawfully withheld by a tenant from
his landlord after the termination of his possessory interest.
Judgment was rendered against the defendant.

The cause was carried by appeal to the circuit court, where the



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5ov. 1893.] PuQH V. Davib. 81

defendant set up in his plea, as an answer and defense to plain-
tiffs action^ the foreclosure of a mortgage, which was executed by
the plaintiff and her husband, on the lands described in the com-
plaint, before the date of the contract of renting between the
plaintiff and the defendant, and the purchase of the premises by
the mortgagee at the foreclosure sale, and the defendant's recog-
nition of the purchaser's ownership of and right to the possession
of the lands, and his attornment to him, the purchaser.

The plaintiff demurred to this plea on the ground that it raises
the question of title to the lands, which cannot be inquired into in
this action. The court sustained the demurrer. On the trial of
the cause, on a plea of not guilty, judgment was rendered against
the defendant, and the appeal here is to reyiew the ruling of the
court sustaining the demurrer to said plea.

There are two questions which have been so long and repeatedly
settled by this court as to leave no room for their further discus-
sion: 1. That in an action of this character the merits of the title
cannot be inquired into; and 2. That the tenant, continuing in
and withholding possession from the landlord, cannot dispute his
possessory title, no matter who has a better one: **® Nicrosi v.
Phillipi, 91 Ala. 299; Houston v. Farris, 71 Ala, 570; Norwood
T. Kirby, 70 Ala. 397; Womack v. Powers, 50 Ala. 5; Dwine v.
Brown, 35 Ala. 597; Dumas v. Hunter, 25 Ala. 714; Clark t.
Stringfellow, 4 Ala. 353.

What was attempted to be set up in this plea was an invasion
of both of these rules, and the demurrer was properly sustained.

The decision of this court in the American etc. Co. v. Turner,
95 Ala. 272, does not infringe these rules. That case, so far as it
has any bearing on this one, decides no more than that, as between
the mortgage company and the defendant, under the facts stated
in this plea, the latter would be the tenant of the former, and could
not dispute his title; but it does not touch the relations between
this plaintiff as the original lessor, and this defendant as her ten-
ant, holding possession under her, nor question anywise the right
of such a plaintiff as this to oust a tenant such as this in an action
of this character.

Affirmed.



LANDLORD AND TENANT— ESTOPPEL OF TENANT TO DENY
LANDLORD'S TITLE.— A tenant cannot be heard to dispute the title
of his landlord during tiie existence of the tenancy: Williams v. Wait»
18. Dak. 210; 89 Am. St. Rep. 768, and note with the oases oollected.



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88 Rich v. McInernt. [AlabaooAi

RioH V. MoInbbny.

[108 ALABAlfA, M5.]

FALSE IMPRISONMENT is bd anlawfal reatraint of • peraon
contrary to his will. Malice need not exist; though, if preaent» it may
be considered in aggravation of damages.

FALSE IMPRISONMENT.-IF AN IMPRISONMENT IS UN-
DER LEGAL PROCESS, an action for false imprisonment cannot be
sustained, and the remedy, if any exists, is by an action for maiidoiia
prosecution.

FALSE IMPRISONMENT.— To sustain an action for false impris-
onment it is not necessary that the plaintiff should have been arrested
and detained on a criminal charge preferred falsely, maliciouslyi and
without probable cause.

FALSE IMPRISONMENT.— Though the code promnlgates a form
of complaint in an action for false imprisonment, it is not to be con*
strued as takine away a right of action existing under facta different
from those disclosed by such form.

FALSE IMPRISONMENT— PLEADING.— A plea that the plain-
tiff wasarrestea and imprisoned by a policeman having cause to believe
him guilty of grand larceny is not sufficient where the complaint
alleges such arrest to have been caused by the defendant acting
maliciously and without probable cause. Though the circumstances
were such that the otiicer might haee lawfully made the arrest on his
own volition, this will not exonerate the defendant if the officer did
nof do so, but acted by the defendant's command and request.

EVIDENCE — RES GEST^.— IN AN ACTION FOR FALSE
IMPRISONMENT it is not error to admit evidence that the officers,
when making the arrest, said that the defendant had accused the
plaintiff of stealing a ring, especially when there is evidence tending
to prove that the arrest was made at the command and procurement
of the defendant.

PLEADING IMMATERIAL FACTS MAY MAKE THEM MA-
TERfAL.— If, in an action for false imprisonment, the plaintiff charges
the defendant with causing an arrest maliciously and without prob-
able cause, both these allegations must be supported b^ the evidence,
though neither need have been averred in the complaint, and, if not
averred, need not have been proved.

JURY TRIAL- INSTRUCTION AS TO DOUBT.— In a civil ao-
tion for false imprisonment, where the defendant denies causing the
arrest of the plaintiff, it is not error for the court to refuse to in*
struct the jury that if their minds are in a state of doubt from the evi-
dence whether the defendant ordered the police officers to arrest plain*
tiff, then their verdict should be for the defendant.

PROBABLE CAUSE FOR PROCURING AN ARREST is sach
reasonable ground of suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious man in the belief that the
party arrested was guilty.

FALSE IMPRISONMENT.— THE FACT THAT THE DEFENIV
ANT COMMANDED the police officers to arrest the plaintiff cannot
entitle the latter to recover of the former, unless the arrest waa in
cons quence of such command.

FALSE IMPRISONMENT.— FALSELY ACCUSING A PERSON
OF A CRIME, and giving the officers the facts upon which such
accusation is based, maliciously and without probable cause, result-
ing in his arrest and imprisonment by such officers, will not sus-
tain an action for false imprisonment against the informant, if the
arrest was not based upon the command nor direction, and the officer*
acted upon their own volition.



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MoY- 1893.] Rich v. McInerny. 33

iLction by McInerny against Eich for false imprisonment Th^
plaintiff alleged that the defendant, maliciously and without prob-
able canse^ caused plaintiff to be arrested and deprived of his Ub-
erty on a charge of larceny. The defendant kept a jewelry store,
which plaintiff entered for the purpose of looking at some rings.
One of these was soon afterwards missed, when the plaintiff was
arrested. There was a sharp conflict in the evidence. That on
the part of the plaintiff was to the effect that the arrest was made
by the direction of the defendant and upon the accusation by him
that plaintiff had stolen the ring. The plaintiff, against the ob-
jection of the defendant, was permitted to testify that the officers,
when making the arrest, told him that he was accused by the
defendant of stealing a ring. The evidence on the part of the
defendant, on the other hand, was that he merely told the officers
of the circumstances attending the loss of the ring, and that they,
without his direction or request, made the arrest, after he had ex-
pressly declined to authorize them to do so. Upon being arrested
the plaintiff gave bonds for his appearance and afterwards ap-
peared at the time specified in the bond, and he claimed that he
then demanded of defendant the warrant of arrest, and that the
cause was continued until the next day, at defendant's request,
and was afterwards dismissed on his failure to prosecute. In-
structions as follows were given to the jury at the request
of the defendant, to all of which the defendant excepted:
"1. If the jury believe, from all the evidence, that defendant pro-
cured, ordered, or directed the arrest of plaintiff, and that he was
arrested, then I charge you that if the defendant did this merely
upon suspicion that plaintiff had stolen a ring from his store, and
without probable cause to believe plaintiff was guilty thereof, then
defendant is liable in this action in such a sum as you may believe,
from all the evidence, that he has been injured, not exceeding five
thousand ($5,000) dollars. 2. If you believe, from all the evi-
dence in this case, that defendant procured, ordered, and directed
the arrest of plaintiff, and that he was arrested at defendant's re-
quest, then, if you believe that in fact no ring was in fact stolen
from defendant's store, and that consequently plaintiff was not
guilty of having stolen the same, then I charge you that the de-
fendant is liable in this suit, and your yerdict should be for the
plaintiff. 3. If you believe, from all the evidence in this case, that
defendant appeared at the mayor's court upon the next day after
the arrest of plaintiff, and stated to the mayor of the town of De-
catur that he would prepare, or haye prepared, a warrant for plain-
tiffy upon a charge of stealing a ring from defendant's store, upon
▲M. 8r. Rir.. Vol. XLIX.— S



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84 Rich v. McInernt. [Alabama^

file next mornings and that thereupon and because of this the
mayor continaed the examination or trial of plaintiff until the next
morning; if you belieye these facts, if facts they be, then this is
some evidence to which you may look, in coimection with all the
evidence in the case, tending to show that the defendant author-
ized and directed the arrest of plaintiff; and if you believe that
he did so procure, order, and direct the arrest of plaintiff without
a reasonable cause to believe that plaintiff was guilty of the charge,
then defendant is liable in this suit. 4. The burden of proof is
on the defendant, Bich, to prove, to the satisfaction of the jury,
that the ring was stolen. 5. I charge you that the ^probable
cause' that will excuse the defendant in this case, if you believe
defendant ordered and directed the arrest of plaintiff, there must
have been a reasonable ground of suspicion, supported by circum-
stances sufficiently strong in themselves to warrant a cautious man
in the belief that the plaintiff was guilty; and even this 'prob-
able cause' is not sufficient to avail the defendant in this cause,,
unless you believe that a ring was in fact stolen from the defend-
ant's store. 7. If the jury believe from the evidence that no fel-
ony had in fact been committed, and that defendant maliciously
and without probable cause directed the arrest of plaintiff by the
policemen, they must find for the plaintiff, and, in assessing plain-
tiff's damages, may take into consideration the injury to his feel-
ings caused by his arrest and imprisonment, and it is not neces-
sary to prove by witnesses the amount of such damages. The
jury may assess damages as they deem proper, not exceeding the
amount claimed in the plaintiff's complaint. 10. Unless the jury
are reasonably satisfied that the ring was in fact stolen, then it is
immaterial whether Sich had probable cause for believing that the
plaintiff had committed the theft." The following instructions
were asked by the defendant, and he excepted to the action of the
court in refusing to give them: *'l. If the jury believe the evi-
dence, they will find for the defendant. 2. Whether the ring was
actually stolen or not, if you believe from the evidence that the
defendant had probable cause for believing it was stolen by plain-
tiff, then your verdict should be for the defendant 8. If the
minds of the jury are in a state cf doubt, from the evidence, as te
whether the defendant. Rich, ordered the police officers to make
the arrest of plaintiff, then the verdict of the jury should be for the
defendant 4. If you believe from the evidence that plaintiff
took the ring mentioned out of the store without the knowledge
of defendant, this would be felony, under the laws of Alabama,
and if you believe from the evidence that the defendant had



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Hoy. 1893.] Rich v. McInerny. 85

probable cause for believing that plaintiff did take the ring, then,
whether he took the ring or not, the defendant would not be liable.
5. If yon believe from the evidence that the evidence of the wit-
nesses, Turley, Griffin, Crass, Nelson, and Rich conflicts as to
whether Rich told the officers. Griffin and Turley, that he would
not make the charge of larceny against the plaintiff, and that he
did not make such charge before plaintiff was arrested, and this
was all the evidence upon this point, and that these witnesses are
equally credible and worthy of belief, then your verdict should be
for the defendant. 6. If you believe from the evidence that
plaintiff was arrested by the officers without being instructed by
the defendant to do so, then defendant is not liable; and, in de-
termining this, you must look to the evidence of the witnesses.
Griffin, Turley, Rich, Nelson, and Crass, and if you find theirs is
all the evidence upon this question, and they are equally credible
and worthy of belief, and that Turley and Griffibi testified that
they were instructed by defendant to arrest plaintiff, and that
Rich, Nelson, and Crass testified that defendant did not instruct
Turley and Griffin to arrest him, then your verdict should be for
the defendant/' Verdict for the plaintiff in the sum of one thou-
sand dollars. Defendant appealed.

Harris ft Eyster, for the appellant

0. Eyle, contra.

•'^ HEAD, J. False imprisonment is the unlawful restraint
of t person contrary to his will. But two things are requisite,
viz: Detention of the person, and unlawfulness of such detention:
7 Am. & Eng. Ency. of Law, 661, 662. Malice is not material,
except in aggravation of damages. Nor is probable cause of guilt,
on the part of the party imprisoned, when the imprisonment is
under a criminal charge, material, except as it may be rendered so
by the provisions of sections 4262 and 4266 of the code, in cases to
which those sections are applicable: 7 Am. & Eng. Ency. of Law,
663, 664. If the imprisonment is under legal process, but **■ the
prosecution has been conmienced and carried on maliciously and
without probable cause, terminating in the discharge of the de-
fendant, it is malicious prosecution, and not false imprisonment:
7 Am. ft Eng. Ency. of Law, 663. The action for damages for
^dse imprisonment is in trespass; for malicious prosecution, in
case.

In Ragsdale t. Bowles, 16 Ala. 62, decided in 1849, the aver-
ments of the complaint were that the defendant '^falsely, malid-



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86 Rich v. McInebnt. [Alabama,

oxxbLj, and without probable cause^ charged the plaintiff with the
crime of felony, and upon said charge, falsely, maliciously, and
without probable cause, caused the plaintiff to be arrested by his
body, and to be imprisoned, and kept and detained in prison for a
long time, to wit, for the space of one day then next following, and,
at the expiration of which said time, he, the said defendant, caused
the said plaintiff to be released and set at liberty, and whoUy
abandoned his said prosecution.'' The action was instituted and
intended as one for malicious prosecution, and was prosecuted
and defended in the court below, and in this court, as such. The
defendant demurred to the declaration, on the ground that it did
not sufficiently aver the termination of the prosecution. Dar-
gan, J., began the opinion of this court with the statement that,
''this was an action on the case for a malicious prosecution," and
proceeded to dispose of the demurrer, above mentioned, to the
declaration, and held that the averment touching the termina-
tion of the prosecution was insufficient, and that the count was,
therefore, bad, considered as a count for malicious prosecution.
But he proceeded further to say that the count was good for false
imprisonment, and for this reason held that the demurrer waa
properly overruled. The idea underlying this conclusion man-
ifestly was, that the descriptive words, "falsely, maliciously, and
without probable cause,'' were sufficient to show that the acts of
arrest and imprisonment charged were unlawful; and, there be-
ing no allegation that they were done under a valid warrant, the
prosecution of which had terminated in the discharge of the de-
fendant, the count was held to contain all the essentials of tres-
pass for false imprisonment. It was clearly, however, not in-
tended to affirm by this decision that, in order to give an action
for false imprisonment, it was necessary that the arrest and de-
tention should have been under a criminal ^'^ charge, preferred
falsely, maliciously, and without probable cause. These charac-



Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 3 of 121)