Opinion
36246.
DECIDED OCTOBER 9, 1956.
Tort; illegal arrest. Before Judge Thomas. Appling Superior Court. March 31, 1956.
C. L. Cowart, T. Ross Sharpe, Alvin L. Layne, Peyton Miles, for plaintiff in error.
Jack W. Ballenger, contra.
The trial judge erred in denying the motion for new trial.
DECIDED OCTOBER 9, 1956.
Quentin Frost filed in Applying Superior Court an action against W. C. Sharpe, Sheriff of Montgomery County, and the United States Fidelity Guaranty Company, surety on the sheriff's bond, alleging in substance: that on January 9, 1954, said Sharpe, acting in his official capacity and under color of his office as Sheriff of Montgomery County, Georgia, ordered and directed his deputy sheriff, Leland Coleman, to apprehend and arrest the plaintiff; that said Coleman, accompanied by one Leroy Kelly, the two acting together and in concert, made the arrest under the orders of Sheriff Sharpe; that said Coleman and Kelly entered the store where the plaintiff was employed and informed him, in the presence and hearing of many customers, that he was under arrest; that the plaintiff inquired of Coleman and Kelly as to the nature of the charge against him and whether they had a warrant for his arrest and demanded to see such warrant, but was informed by them that he was being arrested by order of Sheriff Sharpe and they did not need a warrant for his arrest; that the plaintiff pleaded with said officers some twenty minutes that he be not taken away from his business and he was allowed to call said sheriff on the telephone, when Sheriff Sharpe informed him that he had sent said officers to arrest him and that they were doing what he had told them to do; that Sheriff Sharpe then consented for the plaintiff to stay at his store and report to the sheriff's office the next morning; that said Coleman and Kelly informed him that he was under arrest and was remaining so and in custody of the law and that he was required to report to Sheriff Sharpe; that both Coleman and Kelly stated to the plaintiff that he was under arrest and acted together in arresting him; that the plaintiff requested said officers to inform him as to the charges upon which he was being arrested but they refused to do so; that he had committed no crime; that prior to reporting to the sheriff's office the plaintiff employed two attorneys at a cost of $375 in an attempt to protect himself from the unjust acts of these officers; that he did report to the sheriff's office the next morning and the sheriff informed him that he had made a mistake and released him from custody; that the plaintiff was entitled to recover $3,000 damages because of the shame, humiliation, mortification and physical illness resulting from these unlawful acts; and that he was entitled to recover $375 in damages to pay the attorneys' fees.
The defendants filed general and special demurrers which were overruled. The defendants' answer denied all the material allegations of the plaintiff's petition.
Upon the trial of the case the plaintiff testified in part that Leroy Kelly and Leland Coleman came into the store where he was employed; that Kelly told him in the presence of witnesses that he was under arrest and they were going to have to take him back to Montgomery County and for him to consider himself under arrest; that the plaintiff asked what he was being arrested for and Leland Coleman said that it did not matter, that Sheriff Sharpe had sent them after him and they were going to carry him back; that the plaintiff asked about a warrant and Coleman said that it was not necessary for them to have a warrant; that Kelly said he was working under the instructions of the sheriff; that they allowed him to call Sheriff Sharpe and the sheriff told him he was under arrest and that he had sent Coleman and Kelly to bring him in; that Kelly then talked to the sheriff and Kelly told the plaintiff that the sheriff had told Kelly to hold the plaintiff under arrest with the understanding that he would report to the sheriff's office the next morning at 9 o'clock to be locked up; that the plaintiff considered himself under arrest and employed two attorneys before reporting to the sheriff's office; that he paid said attorneys $375; that when he reported to the sheriff's office the sheriff told him he had made a mistake and had arrested the wrong man; and that as a result of these acts the plaintiff had suffered physical illness.
Sheriff Sharpe testified in part that he had sent no one to arrest the plaintiff; that the first he knew of Leland Coleman and Leroy Kelly going to Baxley was when he received the phone call from the plaintiff; that he did not tell the plaintiff that he was under arrest or that Coleman and Kelly were working under his instructions, and that he asked the plaintiff to come to Mount Vernon because he wanted to talk with him about the plaintiff's father and brother; that Kelly had a warrant for the plaintiff; and that he did not tell the plaintiff that he had made a mistake and arrested the wrong man.
Leland Coleman's testimony was in part that Leroy Kelly asked him if he wanted to ride over to Baxley with him and he consented; that Kelly stated he only wanted to talk to the plaintiff and the only statements the witness made to the plaintiff were "howdy do" and that he was glad to meet him; that Kelly told the plaintiff that his father and brother were in trouble and that he wanted the plaintiff to come up and talk to them; that after Kelly talked to the sheriff on the phone he told the plaintiff to "be up there in the morning," and Kelly said nothing to him about his being under arrest.
There was other testimony which we think unnecessary to incorporate in this opinion because it is only an elaboration of what is stated above. There were several warrants introduced in evidence. The only one concerning the plaintiff was a search warrant against him and one Julian Frost. The jury returned a verdict for the plaintiff. The defendants then made a motion for a new trial which was denied. The defendants except to that ruling and to the overruling of the demurrers.
1. The grounds of special demurrer have neither been argued in the brief filed by the defendants nor otherwise insisted upon, and are treated as abandoned.
2. Special grounds 1 and 2 of the motion for new trial insist that the trial judge erred in denying a motion for continuance. The defendants made the motion because Leroy Kelly was not present on account of illness. Kelly had not been subpoenaed. The trial judge did not abuse his discretion in denying the motion for continuance. Lewis v. State, 89 Ga. 803 ( 15 S.E. 772); Jones v. State, 125 Ga. 307, 308 ( 54 S.E. 122).
3. Special ground 3 assigns error on the trial judge's failure to charge the jury "that if the jury found from the evidence in said case that the plaintiff, if he was arrested at all, was arrested by an agent of the Georgia Bureau of Investigation and not by the deputy of defendant Sharpe, Sheriff, then and in that event the plaintiff would not be entitled to recover." If the court had so charged the jury it would have been error because the sheriff's liability did not depend entirely upon whether the arrest of the plaintiff was made by the sheriff's deputy, but rather upon whether it was made under his authority and instructions. The pleadings and evidence made an issue as to whether Mr. Kelly was authorized and instructed by the sheriff to arrest the plaintiff.
4. Special grounds 4 and 5 assign as error the trial judge's failure to charge the jury the principles of law applicable if the arresting officers had a warrant for the plaintiff's arrest. This contention is without merit because the only warrant against the plaintiff in evidence was a search warrant, under which there is no authority to make an arrest. These grounds show no error.
5. Special ground 6 complains that the trial judge erred in failing to charge the jury as follows: "Damages are given as compensation for the injury done, and generally this is the measure where the injury is of a character capable of being estimated in money. If the injury is small, or the mitigating circumstances are strong, nominal damages only are given." Code § 105-2001. The plaintiff sued for, and offered proof sufficient to authorize recovery of, special damages. For this reason, the language which the ground contends the trial judge should have given in charge to the jury was adapted neither to the pleadings nor the evidence adduced upon the trial of the case. The ground is therefore without merit.
6. Special ground 7 contends that the trial judge "erred in failing to give in charge to the jury either literally or in substance the law of agency." This assignment of error was too indefinite to raise any question to be decided by this court. Smith v. State, 125 Ga. 300 (1) ( 54 S.E. 124).
7. In special ground 8 of the motion for new trial the defendants assign as error the judge's failure to charge Code § 105-2003 which is as follows: "In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff; in such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors. The worldly circumstances of the parties, the amount of bad faith in the transaction, and all the attendant facts should be weighed." Where the entire injury sued for is not to the peace and happiness of the plaintiff, it is error for the judge to charge Code § 105-2003 in its entirety. Central of Ga. R. Co. v. Newton, 23 Ga. App. 96 (3) ( 97 S.E. 553); Pynetree Paper Co. v. Wood, 23 Ga. App. 604 ( 99 S.E. 222). This ground shows no error.
8. Special ground 9 assigns as error the trial judge's failure to instruct the jury as to the principles of law applicable to the contentions of the defendants. One of the defendants' contentions in their answer was that they had not detained the plaintiff at any time and therefore there had been no false imprisonment or arrest of the plaintiff. It was error for the trial judge not to instruct the jury as to the law applicable to this contention. Under the instructions which were given to the jury, they were left without any guide by which to determine what acts would constitute false imprisonment. It is error for the trial judge to fail to give the law applicable to the contentions of the parties whether requested or not. Evans Pennington v. Nail, 1 Ga. App. 42, 44 ( 57 S.E. 1020). "It is one thing to state what a party contends, and another and a very different thing to state the law applicable to such contention." Atlanta, K. N. Ry. Co. v. Gardner, 122 Ga. 82, 93 ( 49 S.E. 818). The trial judge erred in failing to instruct the jury as to the law pertaining to the contentions of the defendants.
9. Special ground 10 complains of the trial judge's failure to charge the jury that in the event they determined that Leland Coleman was not acting under the authority of Sheriff Sharpe, but was acting in his individual capacity, then the plaintiff would not be entitled to recover. This issue was not covered in the general charge, and without a request to charge it the jury should have been instructed in regard to it.
10. After careful consideration of the evidence, it is decided that the general grounds are without merit. There was sufficient evidence from which the jury could determine that Leland Coleman and Leroy Kelly acted in concert in making the unlawful arrest of the plaintiff, and that both men were acting under the direction and instructions of Sheriff Sharpe.
11. The defendant in error invokes the rule that each ground of a motion for new trial, in order to be considered by this court, must be complete within itself. He points out that the 9th and 10th grounds of the amended motion do not set forth the pleadings or evidence necessary to a clear understanding of them. It is true that neither ground quotes the pleadings or evidence literally, but each ground fully states in substance the pleadings and evidence that must be considered in passing upon it. This is all that is necessary to meet the requirements of the rule referred to in Pate v. King, 79 Ga. App. 571, 572 ( 54 S.E.2d 476), and South Side Motors, Inc. v. Forsyth, 81 Ga. App. 374, 380 ( 59 S.E.2d 29). In both cases cited the ground was held incomplete because the portion of the record necessary in determining it was not set out in the ground "literally or in substance."
Judgment reversed. Nichols, J., concurs. Felton, C. J., concurs specially.
I concur in the judgment of reversal because of the failure on the part of the court to charge the jury as to the liability of the defendant Sheriff Sharpe if the jury should find that Leland Coleman was not acting under Sheriff Sharpe's authority (ground 10). I do not think the subject was covered in the general charge, as the court did not charge any law at all on the questions involved in the contentions of the parties.