Gambill v. Fuqua , 148 Ala. 448 ( 1906 )

ANDERSON, J.

— The plaintiff recovered damages of the defendant for his arrest and imprisonment Avith-out a warrant, made by one Boggan, a deputy of the defendant, Avbo Avas license inspector of the city of Birmingham.

Counts 2, 4, and 6 Avere charged out at the request of the defendant, and AA^e need not consider any assignments of error relating to said counts, unless they relate to the questions referable- to the other counts.

Pleas 3 and 4 denied the arrest under the authority of the defendant, and also sought to- justify same. If intended as a denial, the defendant got the benefit- of them under the general issue. If pleas of justification, then they were inconsistent and bad, in attempting to justify an act and at the same time denying the same. The demurrer to pleas 3 and 4 were properly sustained.

There is no proof that the arrest Avas made by the authority nf the defendant, unless the authority might be inferred from the declaration of Boggan at filie time of the arrest: “Gambill told me that you and two or three others were the leaders in the Milkmen’s Association, and that if I could make you pay license the balance would pay.” If this could be considered as -a. declaration that the defendant had authorized the arrest, it was not competent for that purpose. “The authority of an agent, where the question of its existence is directly involved, can only be established by tracing it to its source in some word or act of the alleged principal. The agent certainly cannot confer authority upon himself. Evidence of his own statements or .admissions, therefore, is not admissible against his principal for the purpose of establishing, enlarging, or renewing his authority; nor can his authority be established bv showing that he acted as an agent or that he claimed to have the powers which he assumed to exercise.”—Mechem on Agency, § 100; Galbreath v. Cole, 61 Ala. 140; Wharton on Evidence, § 1184; Scarbrough v. Reynolds, 12 Ala. 252; Postal Co. v. Lonoir, 107 Ala. 640, 18 South. 266; L. & N. R. R. Co. v. Hill, 115 Ala, 334, 22 South. 163. Any declarations of the agent as to his authority were inadmissible, unless other evidence had been shown from which authority to do the thing may be inferred. Or, if the trial court improperly admitted declarations of the agent, the error would be cured by evidence subsequently introduced from which authority might be inferred; and, in case such evidence was introduced the question of authority would become one of fact for the determination of the jury.—Birmingham R. R. Co. v. Tenn. Co., 127 Ala. 137, 28 South. 679. The only evidence, aside from the declaration of Boggan, as to the agency, was that he was the defendant’s deputy, and had served in that capacity for some time. It is true tha-t if an agent, while acting within the scope of his authority, exceeds his authority, the principal would be liable; but there is nothing to indicate, from the evidence in the case at bar, that Boggan was acting within the scope of his 'authority in making the arrest, or that he was doing a thing which his principal had authorized him to do. No authority to make arrests without warrants could be implied from the fact that he was defendant’s deputy license inspector, and there is no evidence that defendant authorized the arrest. Indeed, there is nothing in the evidence that would indicate that the defendant had authority to arrest people for violating the ordinance. An agent has no implied power to do that which the master himself, being present, would not be authorized to do.—Mali v. Lord, 39 N. Y. 381, 100 Am. Dec. 448; Whitmore v. Allen, 33 Tex. 355; 12 Am. & Eng. Ency. Law, 775.

Where a principal is sued for an unlawful arrest and imprisonment made or caused by an alleged agent, and there is no evidence of prior authority or subsequent ratification, it is error to leave it to the jury to say whether or not there ivas such authority or ratification.—National Bank v. Baker, 77 Md. 463, 26 Atl. 867. But, where there is any evidence tending to show the assent of the principal to the acts of the agent, these acts and declarations of the agent, in connection with such evidence of the principal’s assent thereto, should be allowed tO' go to the jury.—Gimon v. Terrell, 38 Ala. 208; McClung's Ex’rs v. Spootwood, 13 Ala. 165.

The acts of the defendant, the day of the trial, id ashing the judge to let him send for Attorney Thach, his conference with him, and the subsequent dismissal of the prosecution, were facts to go to the jury as affording an inference, not only of a subsequent ratification, but of a precedent authorization. In the ease of Shattuck v. Bill, 142 Mass. 61, 7 N. E. 40, it is held: “The plaintiff after his arrest, gave notice of his intention to take the oath for the relief of poor debtors; and* evidence was offered of the presence'and conduct of the defendant at these hearings, as tending to prove authority from him to go make the affidavit and cause the arrest on his behalf. To the admission of this evidence the defendant has no ground of exception. If the whole proceeding in relation to the arrest was without authority from defendant, it is not reasonable to suppose that he would take part in opposition to the application by the plaintiff to relieve himself therefrom; and his acts in relation thereto, although occurring after the arrest, had a tendency to show that it was initiated by his authority almost as directly as if he had thus expressly asserted it.” The evidence, therefore, of the subsequent conduct of the defendant at the trial, cured any error that may have been previously committed as to the acts and statements of Boggan.

There was no error in sustaining the plaintiff’s attorney’s objection to' the question to the plaintiff as to whom he sold milk, and whether or not Boggan knew at the time he was engaged in the milk business. They only tended to show a justification which was not specially pleaded, and which was not admissible under the general issue. It is true that there are instances when a. case avíII be treated as having been tried on a special defense in the absence of such a plea; but the case at bar does not come within the exception.

If there was any error in sustaining the objection to the question to witness McCurdy as to the election of Boggan as a special policeman, it was cured by the witness later testifying that he, as chairman of the police bdard, swore Boggan in as a special policeman in the year 1901.

Theie was no error in permitting plaintiff to prove that Boggan was defendant’s deputy collector during month of September, 1901.

In discussing the question of agency, we allude to the the fact that there was evidence from which a ratification of the arrest by the defendant could be inferred, and the general affirmative charge'requested by defendant was properly refused.

Charge 35 was properly refused, and is covered by a discussion of the evidence of Boggan’s statement.

Charge 24 was properly refused. It ignores any liability of the defendant upon the doctrine of ratification and was calculated to mislead the jury.

Charge 28 was properly refused. In the first place, it was abstract, as there was no evidence that plaintiff sold the milk in Boggan’s presence; second, it sought to justify the arrest, and there was no plea of justifiacation. While it is true the trial court permitted the defendant to introduce an ordinance restricting the sale of milk, this was doubtless let in under the other counts before they were charged out, and the plaintiff was not bound by this fact to try his case on the issue of justification, which had been eliminated by sustaining demurrers to the pleas seeking to invoke such a defense.

Charges 31 and 32 are subject to the same criticism made to charge 28.

Charge 36, if not otherwise bad, was misleading.

Charge 45 was properly refused,- Boggan may not have acted in the line and scope of his agency, yet the defendant would be liable if he ratified the act.

There was no error in giving charge “a” requested by the plaintiff. In the first place there was no plea of justification; second, there was no evidence that Bog-gan had a warrant, or that plaintiff was Adulating the ordinance in his presence at the time of the arrest.

Charge 12, requested by the defendant, Avas properly refused. The jury could have inferred from the evidence that there Avas an authorization of the arrest, even if they were not satisfied that it was subsequently ratified.

The trial court properly refused charge 14 requested by the defendant. It was meaningless, as it sought to relieve the defendant for want of authority from “plaintiff” to Boggan to arrest “defendant.” The defendant was never arrested, and the plaintiff I s the complaining party; but the charge uses the words “plaintiff” and “defendant” in the wrong connectodn, thus rendering it unintelligible.

The judgment of the city court is affirmed.

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