Shannon v. Simms , 146 Ala. 673 ( 1906 )

ANDERSON, J.

This case seems to have been tried on three counts; the first two being for a malicious prosecution, and the third fot false imprisonment. The affidavit introduced in evidence seems to have been made by one Chambers, who is not a party to. the suit, and was prematurely admitted against this defendant, because it was not shown that he authorized Chambers to make it or subsequently ratified his doing so, and defendant’s objection to the introduction should have been sustained. The error of the court, however, was cured by evidence subsequently introduced by plaintiff, tending to show that defendant either authorized or ratified the action of Chambers. The defendant and Chambers both denied authorization or ratification; but there was evidence of defendant’s conversation with plaintiff’s husband at the jail, from which the jury could have inferred that he authorized or ratified the making of the affidavit.

The plaintiff had the right to show in support of her case that the prosecution had terminated, and if the grand jury docket showed an investigation and “No bill,” or an investigation and that the cause had not been continued for further investigation, these recitals would be good evidence of a termination of the prosecution favorably. to the plaintiff. As the bill of exceptions is not clear as to just what was in the grand jury docket, we need not determine whether there was reversible error committed in this respect or not, as the case must be reversed on other propositions.

As the letters and accounts were subsequently excluded, we need not consider the objection to their introduction.

The affidavit made by Chambers was void, in that it did not aver “probable cause for believing” that an offense had been committed. — Monroe v. State, 137 Ala. 88, 34 South. 382. And if defendant authorized it or ratified the arrest of plaintiff he would be liable under the last count. While the affidavit was void, the warrant under which plaintiff was arrested was valid on its face. The authorities are somewhat at variance as to the rule in such a case, and some fail to draw a distinction between the liability of persons procuring an arrest upon process illegal and irregular and the officer who makes the arrest under a warrant valid on its face, but issued on a void affidavit. We think the true rule to. be that a process may be void so far as the parties originating and issuing the same are concerned, ay]die at the same time it may be a good precept for the officer serving it. — Savacool v. Boughton, 21 Am. Dec. 190, and note. The defendant had the right, however, to sIioav that plaintiff had committed the offense Avhich the affidavit attempted to charge in mitigation of damages under the false imprisonment count and as a bar to a recovery to the counts for malicious prosecution. •

The trial court seems to have sustained the objection to the mortgage upon the idea that it Avas not the subject of larceny and in this Ave think the court erred, as a proper predicate had been laid for the introduction of a copy. §§ 5049 and 5050 of the code of 1896, in defiining larceny, include “any personal property.” § 2 of the code of 1896 says: “The Avords ‘personal property’ include money, goods, chattels, things in action and evidences of debt, deeds and conveyances.” It Avas held in the case of Hall & Farley v. Alabama Co., (Ala.) 39 South. 287, that dioses in action were, under our statute, personal property.

The trial court erred in giving charge 1, the general affirmative charge for the plaintiff. Notwithstanding the affidavit Avas void, and the arrest of plaintiff Avas unlaAA'ful, the plaintiff Avas not entitled to the affirmative charge under the third count, because, the evidence of Chambers and defendant both showed that the defendant neither authorized nor ratified the affidavit, and this Avas only contradicted by the inference to be draAvn from defendant’s conversation at the jail Avith the plaintiff’s husband. For these reasons plaintiff was not entitled to the affirmative charge under the other two counts, and for the additional reason that there Avas evidence that Chambers had fairly submitted all the facts to the solicitor and did not make the affidavit except upon his advice. We have repeatedly held that such facts constitute a complete defense to an action for malicious prosecution.— O’Neil v. McKinna, 116 Ala. 620, 22 South. 905; McLeod v. McLeod, 73 Ala. 42; National Surety Co. v. Mabry, 139 Ala. 217, 35 South. 698; Sou. Express Co. v. Couch, 133 Ala. 285, 32 South. 167.

The court erred iu giving charge 4, requested by the plaintiff. If plaintiff stole the mortgage, it was a good defense to the first two counts.

The trial court erred in giving charge 5 requested by the plaintiff. It fixed the liability of the defendant for the action of Chambers by a mere acquiescence, which could have been by silence, yet which would not be a ratification of the act of Chambers, unless he affirmatively ratified the commencement of the prosecution.

Charge A, requested by the defendant, was properly refused. Mental suffering proximately caused by the injury is an element of actual damage. The evidence showed that plaintiff was arrested and had to give bondj and the jury could infer mental suffering therefrom as a natural and proximate result.

The trial court committed no error in refusing the general affirmative charge requested by the defendant. If the defendant was entitled to the affirmative charge on any of the counts, which we do not hold, they were properly refused as being in bad form. — Bessemer Liquor Co. v. Tillman, 139 Ala. 462, 36 South. 40.

The judgment of the, circuit court is reversed, and the cause remanded.

Weakley, C. J., and Tyson and Simpson, JJ., concur.