Sokol Bros. Furniture Co. v. Gate , 208 Ala. 107 ( 1922 )

Count 5, upon which this cause was tried, was specifically rested upon averment of false imprisonment and not unlawful arrest.

Of course an unlawful arrest also embraces an unlawful imprisonment, or in actions of this character arrest is recognized by this court as properly defined as follows:

"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." Cent. of Ga. R. Co. v. Carlock, 196 Ala. 659, 72 So. 261.

It is recognized by all the authorities that there may be a false or unlawful imprisonment in the absence of an arrest, as above defined. Such arrest therefore is not essential to a cause of action for false imprisonment. 25 C. J. 452, and authorities cited in note; Birmingham Ledger v. Buchanan,10 Ala. App. 527, 65 So. 667; Robinson Co. v. Greene,148 Ala. 434, 43 So. 797. The authorities also disclose an action for false imprisonment may be maintained under certain facts and circumstances, even though the original arrest was lawful, such as unreasonable delay and unlawful detention after arrest. 25 C. J. 491 et seq.; Hayes v. Mitchell, 69 Ala. 453.

This cause is reversed solely upon the refusal of the following charge:

"Before you can find against the defendants for false imprisonment, you must be reasonably satisfied from the evidence that the arrest of the plaintiff was illegal."

In my opinion the foregoing authorities demonstrate that the statement of law therein contained is abstractly erroneous. In the present case the officer having the plaintiff in charge carried her to defendants' store, where she was for some time detained and examined, and then afterwards to the jail. Upon this point the plaintiff testified:

"I did not know where Sokol Bros. store was until they arrested me and carried me down there and kept me an hour or so. * * * He carried me inside the store and kept me in there over an hour, I reckon. The Mr. Sokol that is in court was not in at the time, but there was another one in there, and he asked me if my name wasn't Maggie Gates, and I told him no. He tried to make me say my name was Maggie Gates, he and Mr. Wagoner both. I had been there about an hour before the other Mr. Sokol came in. He had gone to dinner."

Even, therefore, had the original arrest of plaintiff been lawful, still the jury could find this detention unlawful, and constituting false imprisonment.

Indeed, the defendant insists there was no arrest, but the officer was merely asked to assist in regard to the collection of the debt, and no process issued. But the complaint in this case did not rest upon unlawful arrest, but expressly upon false imprisonment, and in any aspect of the case the charge in question was highly misleading and properly refused.

The case of Sanders v. Davis, 153 Ala. 375, 44 So. 979, relied upon by the majority, is readily distinguishable. The complaint in that case expressly averred the arrest of plaintiff. The opinion was careful to state "the verdict and instructions will be referred to the complaint as it was, and not to what it may have been supposed to be." Charge 16, given for defendant in that case, is referable to this particular situation, and as the arrest was then averred an essential part of the complaint, the charge given must be referred thereto. The ruling was sustaining the judgment of the trial court in giving the charge, and therefore no occasion there arose for a consideration of any misleading tendency thereof. Here the situation is reversed. The complaint does not rest upon unlawful arrest, but upon false imprisonment, and the judgment of the trial court is reversed solely upon the refusal of this charge. The charge was highly misleading, and in my opinion the trial court properly refused it.

I am persuaded the judgment should be affirmed, and therefore respectfully dissent.

SOMERVILLE, J., concurs in the foregoing views.