Central of Georgia Ry. Co. v. Carlock

McCLELLAN, j.

(1, 2) The appellee instituted this action against the railway Company, a corporation (appellant), and one H. C. Jones. The complaint contained three counts, the first and second charging the wrongful arrest and imprisonment of the plaintiff. The jury’s consideration of these counts was forbidden by instructions given at the instance of the railway company. The third count thus appears in the transcript:

“The plaintiff claims of the defendants $25,000, damages, for that, heretofore, to-wit, on the 15th day of April, 1913, defendant’s servant or agent, acting within the line and scope of his authority as such, wrongfully arrested and imprisoned plaintiff for a long time, viz., for one day, and, as a proximate consequence thereof, plaintiff suffered the injuries and damages set out in the first count of the complaint.”

As readily appears, this count would fix liability, for the damnifying consequences of the wrong charged, under the doctrine of respondeat superior. In order to avail of this doctrine, it was imperative that the pleader make certain, at least to a common intent, in whose services, of the two defendants, the derelict agent or servant was when he committed the wrong for *661 which recovery was sought. The count, as phrased, left entirely uncertain in whose service, of the two defendants, the derelict agent or servant was engaged when the wrong alleged was inflicted upon the plaintiff. In this state of the averments of the count, no other conclusion is possible under our authorities than that the count failed to state a cause of action; and, being so completely ineffectual, no valid, judgment could be predicated of the count. — Osborne v. Cooper, 113 Ala. 405, 21 South. 320, 59 Am. St. Rep. 117; L. & N. R. R. Co. v. Duncan & Orr, 137 Ala. 446, 453, 455, 34 South. 988, and decisions therein cited. The fact that the latter decision,' and others in its line, involved alternatives does not invite a conclusion that would render them inapplicable to the count under consideration. In those cases, the pleader had sought to at least declare, alternatively, upon theories of responsibility; whereas, in the count here in question, the pleader léft the essential matter of definite ascription of the agent’s authority in the premises wholly at large between two defendants. A judgment by default coiild not have been validly rendered on the count; for the court could not have known to which of the two defendants- the derelict agent’s wrong was ascribed by the pleading or was attributable as the basis for liability, under the doctrine of respondeat superior. There is nothing on the face of the count to justify this court in assuming that there was mere clerical error in the use of the singular, instead of the plural, possessive of the word “defendant” in describing and designating the principal or master of the agent or servant to whose conduct the liability was ascribed.

(3-7) Where the tortious conduct or omission relied on for a recovery is alone the result of negligence in the performance of duty on the part of an agent or servant, the principal or master and the derelict agent or servant may be joined as defendants in a single count (South. Ry. Co. v. Arnold, 162 Ala. 570, 578, 50 South. 293); but where the wrong committed by the representative is a trespass only, and the principal or master did not authorize, aid, abet, or ratify the wrongful act, the agent or servant cannot be made a joint defendant with his principal or master in a single count. — South. Bell Tel. Co. v. Francis, 109 Ala. 224, 231, et seq., 19 South. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930, opinion of Justice Head; South. Ry. Co. v. Hanby, 166 Ala. 641, 52 South. 334. An arrest may be effected without a touching of the body or actual force; it being sufficient if the party is within the power *662 of the officer and submits thereto, even as the result of verbal command. — Field v. Ireland, 21 Ala. 240; Dougherty v. State, 106 Ala. 63, 17 South. 393; 2 Rul. Cas. Law, pp. 445, 456; Bissell v. Gold, 1 Wend. (N. Y.) 210, 19 Am. Dec. 480, and note; 3 Notes on Am. Dec. p. 754; 5 C. J. pp. 385-387. “An arrest consists in taking, under real or assumed authority, custody of another person for the purpose of holding or detaining him to answer a criminal charge or civil demand.” — 5 C. J., supra. Detention of a person by another, with force, or against the will of the person detained, is, in law, imprisonment; and, if the detention is not rightful, it is unlawful. — 2 Words and Phrases (2d Series) p. 971; Martin v. Houck, 141 N. C. 317, 54 S. E. 291, 7 L. R. A. (N. S.) 576. Án arrest is an imprisonment. — Blight v. Meeker, 7 N. J. Law, 97, 98; People v. Bancker, 5 N. Y. 106, 123.

From the evidence, and inferences therefrom, in the bill of exceptions, it is quite clear that the issues whether'plaintiff was wrongfully arrested and imprisoned on the occasion in question, and whether Jones, as agent or servant of the railway company, effected the wrongful arrest and imprisonment or participated therein were due to be submitted to the jury for decision.

(8) While there may be instances where a witness’ statement that another was arrested, or that he saw another arrested, would be but an opinion or conclusion of the witness, yet it is common knowledge that the act or fact of arrest of one person by another or others is, in most instances, a so readily observable, unequivocal fact or fact as to fully warrant a witness in collecting the elements constituting the single act into a single affirmative statement that an arrest was made. There was no error in overruling the motion to exclude the answer of the witness Vaughn, to the effect that he thought plaintiff was arrested. The subsequent testimony of the witness showed, if credited, that his collective statement was justified by what he saw and heard.

The judgment is reversed and the cause remanded.

Reversed and remanded. All the Justices concur, except Thomas, J., who dissents.