WESTERN UNION TELEGRAPH CO. v. THOMPSON, 144 F. 578

MAXEY, District Judge, after stating the case, delivered the opinion of the court. It is evident that the cause was submitted to the jury on the theory that the first and third counts of the complaint were in trespass for false imprisonment, and that the second was in case for malicious •prosecution. And, indeed, such was the attitude of the suit, as made by tire pleadings in the4ir original form, but the amendment of the second' count eliminated malicious prosecution as a cause of action and converted that count into one, also, of trespass for false imprisonment.

As the second count stood originally, it charged that the defendant caused the plaintiff to be arrested under a warrant issued by C. W. Austin, chief of police, etc., and hence contained apt words ;to charge a case against the defendant for malicious prosecution. Thus it was said by the Supreme Court of Alabama in Rich v. McInerny, 103 Ala. 351, 352, 15 South. 665, 49 Am. St.

Rep. 32: “If the imprisonment is under legal process, but the prosecution has been commenced and carried on maliciously and without probable cause, terminating in the discharge of the defendant, it is malicious prosecution, and not false imprisonment. 7 Am. & Eng. Enc. Law. 603. The action for damages for false imprisonment is in trespass, for malicious prosecution, in case.” See, also, Ragsdale v. Bowles, 16 Ala. 62. And by the same court it was said in Davis v.

Sanders, 133 Ala. 278, 32 South. 499: , “The complaint contained two counts; the first being in Code form (No. 19 p. 946, Code 1896) for false imprisonment; the second being the same, with additional averments of matters showing aggravation. Both counts are in trespass. Ragsdale v. Bowles, 16 Ala. 62; Sheppard v. Furniss, 19 Ala. 760; Holly v. Carson, 39 Ala. 345; Rhodes v. King, 52 Ala. 272; Rich v. McInerny, 103 Ala. 345, 15 South. 663, 49 Am. St. Rep. 32; 13 Ency. Pl. & Pr. 427, 428, 429, note 1.

The amendment of the second count by the additional averment that ‘said charge before 'the commencement of this action- had been judicially investigated and said prosecution ended and the plaintiff discharged,’ did not change the character of the count from one in trespass for false imprisonment to one in ease for malicious prosecution. As amended, it was still wanting in averments essential to constitute a count for malicious prosecution.

An- averment of the issuance of process properly describing it, and the plaintiff’s arrest and imprisonment by virtue thereof, is essential in an action on the case for malicious prosecution.” From a perusal of the general charge of the court it will be readily observed that, obviously through inadvertence of the learned judge, the attention of the jury was mainly directed to the count for malicious prosecution, which had, as we have seen, disappeared from the pleadings, and no long'er constituted an issue in the case.

And it is reasonably clear that the charge thus given had the effect of mislead” ing and confusing the jury upon the real issues before the court to the prejudice of the defendant. Instructions to a jury must be based upon, and be applicable to, the pleadings and evidence. They should be neither broader nor narrower than the pleadings, but should be predicated of all the issues raised by the pleadings and supported by the evidence, and they are equally faulty whether they enlarge or re- . strict the issues. 11 Enc. Pl. & Prac. pp. 158-160, and authorities cited.

It may -be further observed that where the complaint is in trespass for false imprisonment, and it is alleged that the arrest was caused, by the party complained of, with malice and without probable cause, the proof should establish the existence of those elements to authorize a recovery. In speaking of the form of complaint and of the necessity for such proof, it was said by the Supreme Court of Alabama, in Rich v. McInerny, 103 Ala. 354, 15 South. 666, 49 Am. St.

Rep. 32: “The action is maintainable only wlien the arrest and imprisonment are done or caused by the defendant, upon a criminal charge, with malice and without probable cause. * * * It alleges arrest and imprisonment of plaintiff,nby the procurement of the defendant, upon a charge of larceny, with malice, and without probable cause. Being alleged, these elements must be shown to have existed, to justify a recovery by the plaintiff.” At pages 356, 357, of 103 Ala., page 667 of 15 South. (49 Am. St.

Rep. 32), it was further observed: “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.” It is also insisted by the defendant that the trial court erred in giving in charge to the jury that portion of the general charge set out in the statement of -the case, and in refusing the special instructions by it -requested.

The charge of the court was correct as it applied to Williams, who was the general manager and vice principal of the defendant at Birmingham,- and who stood for and represented, within the sphere of his authority, the corporate entity itself. Hence, for a trespass committed by him, in his representative character, or for one commanded or authorized by him in such character, suit would be maintainable against the defendant in trespass. Southern Bell Telephone Co. v. Francis, 109 Ala. 224, 19 South. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930.

But case, and not trespass, would be the appropriate remedy where the injury grew out of the negligent and unauthorized act of a mere servant working under the immediate control and orders of a superior. This distinction is illustrated by the cases of City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389; Railway Company v. Freeman, 140 Ala. 581, 37 South. 387; Southern Railway Co. v. Yancy (Ala.) 37 South. 342.

And further it may be said that as the several counts of the complaint are in trespass and count upon the malicious and wrongful act of the defendant corporation, and not upon wrongs committed by its servants, their averments are not supported by evidence showing that the injury complained of was inflicted by'a mere subordinate office employe of the defendant, acting without authority from his principal, even should it be assumed that his act was wrongful and malicious. Southern Railway Co. v. Yancy, supra.

Nor does this ruling conflict with the admitted and settled principle of law, as held by the Supreme Court of Alabama, that the master, in the appropriate form of action, will lie held liable in damages for injuries willfully and intentionally inflicted by the servant while acting within the general scope or line of his employment. City Delivery Co. v. Henry, supra.

In the present case the proof was conflicting as to whether Williams caused the arrest of the plaintiff, or whether she was arrested at the command and instigation of a mere subordinate employé in the defendant’s office; and, as it was the purpose of the special instruction to submit this issue to the jury, we are of the opinion thaf the court erred in refusing it. . For the errors indicated, the judgment should be reversed and the cause remanded for a new trial, and it is so ordered. Reversed and remanded.