Abraham Clark Freeman.

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teristics, while they constitute imlawfulness in themselves suffi-
cient to show trespass, and support an action of that nature when
the arrest is not imder legal process, are yet restrictive of the un-
lawfulness by which the action may be supported; and they were
material to the action then before the court, only because they
were alleged, and constituted the only character of unlawfulness
which was alleged.

For instance, it was never intended to be decided that a wrong-
ful imprisonment, not based upon a criminal charge, would not
give an action of trespass for false imprisonment; or that an im-
lawful imprisonment, without legal process, based upon a ciim-

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Not. 1893.] Rich v. McInbbny. 87

inal charge, effected without malice and with probable cause,
would not giye such an action. Suppose the case of an arrest
and imprisonment by a private person, in good faith, upon a
eharge of misdemeanor not committed in his presence, of one
actually guilty of the offense; surely, in such a case, an action for
false imprisonment would lie.

Shortly after the decision of Eagsdale v. Bowles, 16 Ala. 62,
the code of 1852 was adopted, and in it a schedule of forms of
complaints was promulgated. Among these forms is one headed:
*Tor false imprisonment." With the case of Eagsdale v. Bowles,
16 Ala, 62, evidently before the codifier, he substantially con-
formed this form to the declaration in that case, and wrote it thus:

"A. B., Plaintiff,

Y.

C. D., Defendant

The plaintiff claims of the defendant dollars, as damages

for maliciously, and without probable cause therefor, arresting
and imprisoning (or, if the case be so, causing the defendant [?]
to be arrested and imprisoned) on a charge of larceny (or other

felony as the case may be), for days, viz., on the day

of ."

This form was carried into the codes of 1867 and 1876 with-
out change and into the code of 1886 so changed as to correct the
mistake, whereby the word "defendant** was used when "plain-
tiff** was intended, and to adapt the form to an arrest under any
criminal charge, whether felony or otherwise. It thus appears,
as we said of the declaration in Ragsdale v. Bowles, 16 Ala. 62,
that the form of complaint prescribed by the code is highly re-
strictive of the nature and character of the wrongful acts which,
under the general principles of law, will support an action ••* of
trespass for false imprisonment. Pursuing that form, the action
is maintainable only when the arrest and imprisonment are done
or caused by the defendant, upon a criminal charge, with malice
and without probable cause. We are of opinion it was not the
intention of the legislature to make this form exclusive. We can-
not suppose it was designed to abolish the probably graver ofTenses
of false imprisonment, civilly actionable, which are not charac-
terized by the elements the form makes essential. This question,
however, is not now before us, since the present complaint pursues
the form prescribed. It alleges arrest and imprisonment of plain-
tiff, by the procurement of the defendant, upon a charge of lar-
ceny, with malice and without probable cause. Being alleged.



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88 Rich v. McInebnt. [Alabamap

these elements must be shown to haye ezistedi to justify a recoY-
cry by the plaintiflf.

By statute, a marshal or policeman of an incorporated city or
town, as well as sheriffs and constables, may, within the limits of
his connty, arrest a person without a warranty when he has rea-
sonable cause to belieye that such person has conmiitted a felony,
although it may afterwards appear that a felony had not, in fact,
been committed: Code, sees. 4260, 4262. In making the arrest
the officer must inform the person of his authority, and the cause
of the arrest, except when he is arrested on pursuit: Code, sec.
4263. There are other cases, not necessary to mention, in which
arrests may be made by officers without warrant: See Code, sees.
4260, 4262, 4263. The defendant interposed a special plea, set-
ting up that the alleged arrest and imprisonment of plaintiff were
had and made by a policeman of the town of Decatur, an incor-
porated town in Morgan county, Alabama, the said policeman
having reasonable cause to believe that plaintiff was guilty of the
offense of grand larceny. The plaintiff demurred to this plea,
assigning as grounds, that it fails to deny that the arrest was done,
caused, or effected at the instance, request, or command of the
defendant, without reasonable cause or belief on the part of the
defendant that the plaintiff was guilty of grand larceny, and
that it fails to deny that defendant caused the arrest of plaintiff
maliciously and without probable cause. These pleadings are
aptly framed to present the question they are intended to pre-
sent, which is, whether the facts stated in the plea, taken in con-
nection with the ^^^ facts averred in the complaint and not
traversed by the plea, do not show the injury complained of was
consequential upon the defendant's wrong, by reason whereof
the plaintiff's remedy is in case, and not in trespass. The argu-
ment in support of the plea is that as the arrest was by an officer,
upon a charge of felony, who had reasonable cause to believe the
plaintiff guilty, the act was lawful on the part of the officer; and
the defendant, therefore, in procuring the arrest procured the
commission of a lawful act, and his conduct being characterized
by malice and want of probable cause, his wrongdoing consisted,
not in causing an unlawful arrest, but a lawful arrest in an un-
lawful manner. The vice of the ar^ment, we conceive, is that
it erroneously supposes that the rightfulness or lawfulness of the
officer's act, in arresting one without warrant who he has reason-
able cause to believe has committed a felony, can be predicated
upon the command or direction of another procuring him to '^^
the act. Such lawfulness on the part of the officer is predicabu



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^'ov. 16y3.J KicH V. McLnkkny. 39

alone of information possessed by him^ affording him reasonable
cause to believe that a felony has been committed by the party
arrested; hence the arrest must be of the officer's own Tolition^
based upon this reasonable cause^ and must not be induced by the
command or direction of another. If he acts by the command or
direction of another^ and arrests and imprisons one upon a charge
of a felony which has not been committed^ or if committed, the
party conunanding the arrest had no reasonable cause to believe
was committed by the person arrested, the act is imlawf ul on the
part of the officer himself, as well as the person who procured it:
Code, sec. 4266. And this is true, although, at the same time, he
may have had reasonable cause to believe the party guilty. If ha
acted upon the command or request of another, without which he
would not have made the arrest, the act cannot be legally consid-
ered as resulting from the reasonable belief of guilt. We do not
mean to intimate that the officer's information, which will give
liim reasonable cause of belief, justifying the arrest on his part,
may not be derived from another, who may, at the same time,
command or request him to make the arrest. We wish it under-
stood that the distinction we draw is, that the command or re-
quest must not be the moving cause of the officer's act, *^* but
his act must proceed alone from his reasonable cause of belief of
the party's guilt, based upon his information of facts touching
guilt, howsoever derived. Whether he so acted will always be a
question of fact to be determined upon a consideration of all the
circumstances of the particular case. As a corollary, if the officer
was not induced by the command or request given by another,
but acted alone upon reasonable cause to believe the party guilty,
then such command or request, though given, cannot be deemed
a cause of the arrest, and the party giving it would be guilty of no
trespass, without regard to the motive with which it may have
been given. The plea in question in legal effect confesses that
the act of the officer was caused by the command of the defendant,
and seeks to avoid its consequences by the allegation that he, the
officer, at the same time, had reasonable cause to believe that the
plaintiff was guilty of the felony mentioned. It does not go so
far, even, as to allege that this reasonable cause of belief con-
curred with the defendant's command in inducing the officer to
act. The demurrers were properly sustained.

We have seat that the plaintiff took upon himself to allege
that the defendant caused him to be arrested and imprisoned on a
charge of larceny maliciously and without probable cause. We
construe the larceny charged to mean grand larceny, under our



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40 Rich v. McInebnt. [Alabama,

■tatutes, as iha pleader has not alleged it to faaye been of a
unaller grade. The pleas and replications^ as we interpret them^
do no more than put these allegations in issue.

On the trial, it appeared that the arrest was made by police
officers of Decatur, and the plaintiff, while testifying, was per-
mitted to state, against the objection and exception of defendant,
that the officers said, at the time of the arrest, that Bich, mean-
ing defendant, had accused him of stealing a ring. There was
no error in this ruling. All that was said by the officers while
making the arrest was admissible as res gestae. Besides, there
was evidence tending to show that they acted by command and
procurement of the defendant, and, if the jury believed that evi-
dence, all that the officers said or did in furtherance of such com-
mand could be considered as evidence against him.

The court tried the case upon the theory that the existence of
malice and want of probable cause, actuating *^^ the defendant to
cause the arrest, if he did cause it, were immaterial. We have
shown that they were material by reason of being alleged. It
was incumbent on plaintiff to satisfy the jury of both. All the
charges, therefore, given for the plaintiff, except the seventh,
were erroneous, in view of this principle. For like reason, the
second charge requested by defendant ought to have been given*

All the other charges requested by the defendant were prop-
erly refused. The third exacts too high a measure of proof that
defendant caused the arrest. The fourth incorrectly defines lar-
ceny, for reasons too obvious to require mention.

The fifth and sixth were properly refused because of their ar-
gumentative character.

The fifth charge, given at the instance of plaintiff, correctly
defines ^'probable cause'' to be '^a reasonable ground of suspicion,
supported by circumstances sufficiently strong in themselves to
warrant a cautious man in the belief that the plaintiff was
guilty." Under the complaint, as framed, if the defendant had
such probable cause to bdUeve that the felony had been com-
mitted, whether, in fact, it had been committed or not, and that
the plaintiff was guilty thereof, the plaintiff was not entitled to
recover.

The seventh charge given for the plaintiff, whilst it protects
defendant against a recovery if he acted without malice or with
probable cause, yet authorizes a recovery against him if he di-
rected the arrest of plaintiff by the policemen, whether those
officers acted in pursuance of such direction, or entirely of their
own volition. As we have already said, if they were not moved



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Vor. 1898,] BiOH t. McInbbny, 41

«r indnoed to maka the arrest and imprisoiuiieiifc hj tba dfaeetton
or request of defendant, it is immaterial whether he gate aach
direction or request or not; or, if he did, how maUdons may have
been hia motive in giving it, or how palpable the want of prob-
able canae. We remark, further, that if the defendant did no
more than accuse the plaintiff of the theft, and give information
to the officers of the facts upon which he based the accusation,
upon which accusation and information the officers acted of their
own volition, without command, direction, or request of the de-
fendant, then defendant is not liable in this action, although he
may have acted maliciously ■■* and without probable cause in
making the accusation and giving the information. The seventh
charge is also erroneous in assuming that the plaintiff suffered in-
jury to his feelings. Whether he did or not was a question for
the jury, not the court

For the errors pointed out the judgment of the dty court is
reversed and the cause remanded.

Beversed and remanded.

BBICEIELL, G. J., not sitting.

FALSE IMPRISONMENT— WHAT IS.— Every confinement of the
person is imprisonment: Floyd v. State, 12 Ark. 43; 54 Am. Dec. 250.
False imprisonment is "the wrong of arresting, confining, or detaining
an individual without lawful authority to doBo"t Extended note to
Mitchell V. State, 54 Am. Dec. 258.

FALSE IMPRISONMENT— MALICE.— Neither malice nor want of
probable cause need be proved to support an action for false imprison*
meat : Boeger v. Langenber^, 97 Mo. 390 ; 10 Am. St. Rep. 322, and note.
In an action for false imprisonment it is not necessary to allege in the
complaint that the imprisonment was malicious and without probable
cause; Goiter v. Lower, 35 Ind. 285; 9 Am. Rep. 735; extended note to
Mitchell V. State, 54 Am. Dec. 269.

FALSE IMPRISONMENT— PROBABLE CAUSE.— To constitute
probable cause there must be such reasonable ground of suspicion,
supported by circumstances sufficiently strong to warrant an ordinarily
cautious man in the belief that the arrested person was guilty of the
charge against him ! Note to Boeger v. Langenberg, 10 Am. St. Rep.

FALSE IMPRISONMENT— ABUSE OF LEGAL PROCESS.— An
action for false imprisonment will lie for the misuse or abuse of regular
legal process: Wood v. Graves, 144 Mass. 365; 59 Am. Rep. 95.

FALSE IMPRISONMENT — EVIDENCE. — ADMISSIONS AND
DECLARATIONS made at the time of the arrest are admissible in evi-
dence, and all must be received or the whole rejected: Rogers v. Wil-
son, Minor, 407; 12 Am. Dec. 61. See« also, the extended note to
MitcbeU v. State, 54 Am. Dec. 258.



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42 Buckley r. Cunni2«giiam. [Alabama,



BUOKLBY V. GUNNINGHAIL

[1O8AlaaIlMA,440.]

A LANDLORD IS NOT LIABLE FOR THE FREEZING AND
BURSTING OF WATER-PIPES in the upper part of a building
owned by bim, wliereby the lower part occupiecf by his tenant ia
flooded and liis goods tiiereiu injured, there being no claim that the
pipe itself wae detective or not put in in a proper manner, and the
)act beiiig that the tenant had as much power to avoid the injury as
the landlord.

LANDLORD AND TENANT.— A landlord is not answerable to
the tenant for injuries resulting from water-p p*3S or from the mode of
constructing the ouildin;^ or appurtenances, there being no latent de-
fect, fraud, nor concealment.

Goodhue & Sibert, for the appellant
Bilbro & Burnett, contra.

^^ COLEMAN, J. The plaintiffs, Cunningham and Ader-
holdt, ^^ rented from Buckley the lower rooms of a building,
in which they carried on a millinery business. There was a
water-pipe, leading from the main of the waterworks of the city
of Attalla, under ground to the rear of the building, and up
through the room rented by plaintiffs to an upper room oyerhead,
by means of wliich water was conducted to the upper story. On
account of a freeze the pipe bursted in the upper room, and the
water escaping therefrom leaked through upon the goods of the
plaintiff in the room underneath and injured them. The upper
room was unoccupied and was under the exclusive control of the
landlord, Buckley. The precise negligence averred in the first
count of the complaint is, ^Hhat the defendant negligently failed
to cut the water off from said upper story,*' etc. The negligence
averred in the second count is, "that the defendant negligently
failed to provide a shut-off for said water-pipe, so that the water
in said pipe could be shut off,'* etc The case was tried by the
court, without the intervention of a jury, upon the plea of the
general issue and contributory negligence, and the trial resulted
in a judgment for the plaintiffs.

The relation of landlord and tenant, that the water was not cut
off, the bursting of the pipe from freezing in the upper room, the
running of the water through the floor, and damage to the goods,
were fully proven. There was no evidence that the pipe itself was
defective or that it was not put up in a proper manner.
There was no cut-off to the pipe except the city stop-
cock in front of the building. Rule 6, established by the
board of commissioners of the waterworks, provided that, ^in



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^'o7• 1893.] Buckley v. Cuni«ingham. 43

addition to the stop-cock near the curbstone furnished by the
citj, each attachment^ at the expense of the consiuner^ must be
provided with a stop and waste cock oonyeniently placed inside
the premises under the control of the occupant, to be used in case
of leakage of the pipe or fixtures, or for making repairs and to pre-
vent freezing.'* There was no stop or waste cock attached, as
provided in the foregoing rule. It was also in evidence, without
conflict, that one Prickett "was employed by the waterworks to
turn on and shut off water*'; '^that it was his duty to cut off the
water when parties requested it.'* It was also in evidence that
plaintiffs were not informed, when they rented the lower room,
that a water-pipe passed up through it, but this information was
^** not intentionally withheld, and the pipe was open to be seen
by ordinary examination, and its existence and position was, in
fact, known to plaintiffs several days before the damage. Plain-
tiffs never requested either the landlord or Prickett to cut off the
water. One of the plaintiffs testified that "she supposed the water
had been turned off, and had no idea there was any water in the
pipe.*' From these facts the court declared, as matter of law, that
the landlord was liable. Our opinion i8,that,imder the evidence,
the plaintiffs had as much authority over the city stop-cock as the
defendant, and the defendant owed them no duty to see that the
water was cut off, at least until notified and requested to do so.
The testimony is full that it was the duty of Prickett "to .cut off
the water when parties requested it." Plaintiffs were themselves
negligent in merely "supposing the water had been turned off.**
It was their duty to know, and it was within their power, and was
their privilege, to have guarded against the cause of damage. It
follows that the plaintiffs were not entitled to recover under their
first count.

The second count charges that "the defendant negligently
failed to provide a shut-off for said water-pipe, so that the water
in said pipe could be shut off.'* If it be conceded that the de-
fendant was negligent in the matter alleged, there is no evidence
to show that it proximately contributed to the damage. Plain-
tiffs made no complaint on this account, made no attempt to cut
the water off, made no request to have it done. There was a city
ehut-off convenient to plaintiffs, and, according to the evidence,
there was an employee whose "duty it was to cut off the water
when requested." Moreover, we are of opinion that every man
has a perfect right, in the matter of water-pipes or other con-
veniences, to construct his own buildings, according to his own
preferences, either with or without them. There being no latent



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44 Buckley t. Cukninoham. [Alabamap

defects, or fraud or concealment, a tenant takes a building as it is,
regulating the price according to the value, increased or dimin-
ished by its condition and conveniences. If the building or room
has a water-pipe through it, and there is no stop or waste cock, the
tenant knows it when he rents the building, fixes its rental value
accordingly, and, unless it is provided otherwise by contract, he
assumes the risk incident to its condition: Jaffe v. Harteau, *■*
56 N. Y. 398; 15 Am. Rep. 438; Cowen v. Sunderland, 145 Mass.
3fi3; 1 Am. St. Rep. 469; Doupe v. Genin, 45 N. Y. 119; 6 Am.
Rep. 47; Gill v. Middleston, 105 Mass. 477; 7 Am. Rep. 548; Da-
vidson V. Fischer, 11 Col. 583; 7 Am. St Rep. 267; McCarthy v.
York etc. Sav. Bank, 74 Me. 315; 43 Am. Rep. 591.

We fully realize the maxim, "Sic ntere tuo ut alienum non
laedas,** when this rule applies, and also the liability of an upper
tenant, or a landlord who controls an upper story, for all dtun-
ages sustained by one occupying an under story or room, caused
by any culpable negligence of such landlord or upper tenant
The fact that the landlord controlled the upper room in which the
pipe bursted adds nothing to his responsibility in this case. If the
upper room had been occupied by a tenant with absolute control,
to the exclusion of the landlord, such tenant, under the evidence,
would not be liable for the damage; neither would the liability of
the landlord by reason of such tenancy be lessened. There was
no defect in the pipe, and there was no neglect of duty pertaining
to the upper story, where the break occurred. The neglect, if
any, was in not shutting off the water, if a duty — one the landlord
owed to the occupants of the lower rooms as much as to an occu-
pant of the upper room. The cases of Jones v. Freidenberg, 66
Ga. 605, 42 Am. Rep. 86, and Rosenfield v. Arral, 44 Minn. 395,
20 Am. St. Rep. 584, and others of like import do not apply.
Here the liability, if it exists, lies behind — ^farther back than —
the occupancy or control of the upper story; it is in the negligent
failure to cut off the water from the pipes, a duty owing to
plaintiffs, if it be such, without reference to the ownership or occu-
pancy of the upper story.

To declare as matter of law, growing out of the relationship of
landlord and tenant, independent of contractual obligation, that
the landlord owed a duty to his tenants, in anticipation of a freeze,
to see, for the protection of his tenants, that the water was cut off
from the pipes, when the facts show that the tenants have equal
authority and privilege to shut the water off, or cause it to be shut
off at their request, as the landlord, would be to lay down a rule
of law unwarranted by any just principle or any precedent which



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Nov. 1893.J Lndustkial Trust etc. Co. v. Weaklxy. 45

we haye discovered. Under the eyidence the reidict ihould ham
been for the defendant A judgment will be here rendered to frH
effect
Serersed and rendered.

n^^^S2iK^95 ^^^ TENANT-LIABILITY OF LANDLORD FOB
P^f^CTS IN PREMISES.-In the abeenoe of fraud and deceit a
laodJord is not liable to a tenant for obvious defeota in the leased
?o?"l?®.^'^*^*^ ^^ ^^ constitute a nuisance: Eyre v. Jordan, 111 Mo.
424 J 33 Am. St. Rep. 543. and note. See, also, tbe notes to Poor y.
b^ra, 26 Am. St. Bop. 278, and Lindsey v. Leigbton, 16 Am. St. B^.

m^iiS?^^,^^ ^ND TENANT-LIABILITY OF LANDLORD FOR
]J^TER-PIPES ON UPPER FLOOR.-A landlord rented a room on
tHe fitth floor of a building with a bathroom and water-closet appur-
• "fk J°®'^^ "*<^ appurtenant also to another room which remained
in the landlord^B control. Injury occurred to lower tenants by the
careless use of the bathroom. It was held that the landlord was liable,
though not personally negligent: Jones v. Freidenburg, 66 G». 605; 42
Am. Rep. 86, and note. The lessee of an upper floor of a building is
responsible for the proper use and care of the water and water fixtures
thereon, and is liable for damages sustained by the tenant of a lower
floor by reason of his failure to exercise proper care in the use of such
fiztuies: Rosenfield ▼. Arroi, 44 Minn. &6; 20 Am. St. Rep. 684, and



Ihdustrial Trust, Title, and Savings Company
V. Weaklby.

(108 ALABAMA. 458.]

A BANK CHECK IS PAYABLE IMMEDIATELY on pieaenUtion
•Bd demand.

BANKING.-THE DRAWING OF A CHECK ON A BANK
PRESUPPOSES A DEPOSIT of a sum in bank to the credit of the
aniwer sufficient to pay it, and amounts to an absolute appropria-
k 1 J ^ ^^0 drawer of so much money in the hands of the bank to the
Bolder of the check which he cannot properly withdraw.

. A BANK CHECK SHOULD BE PRESENTED FOR PAYMENT
vitbm reasonable time. Otherwise the delay is at the peril of the

A BANK CHECK SHOULD BE PRESENTED FOR PAYMENT
within bank hours on the day on which it is received, or on the day
lollowiDe if the bank on which it is drawn is in the same place
vhere the pavee receives it. If, within that time, the bank fails,



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