Opinion
28276.
DECIDED JUNE 10, 1940. REHEARING DENIED JUNE 29, 1940.
Action for damages; from Richmond superior court — Judge Franklin. December 16, 1939. (Application to Supreme Court for certiorari.)
Paul T. Chance, for plaintiff. Curry Curry, for defendant.
1. The allegation that the defendants "called in said officers and caused plaintiff's arrest," when taken in connection with the context where it is alleged that the arrest was caused and instigated by the defendants, amounts to an allegation that the defendants through their agents procured or directed the arrest of the plaintiff. The petition set out a cause of action, and the court erred in sustaining the general demurrer.
2. The assignment of error on the order overruling the plaintiff's demurrer to part of the defendants' answer was prematurely brought to this court. However, it is ordered that the official copy of the bill of exceptions on file in the office of the clerk of the trial court, as to that assignment of error, be retained as exceptions pendente lite to such judgment.
DECIDED JUNE 10, 1940. REHEARING DENIED JUNE 29, 1940.
Miss Ruth Webb brought suit against G. Williams Prince and Davis C. Williamson jointly and severally, to recover damages by reason of facts alleged in the petition as amended, as follows: The defendants, as lessees, are in possession and control of the premises known as 542 Broad Street in the City of Augusta, Georgia, and operate therein a restaurant known as Mack's Restaurant. The plaintiff resides at Statesboro, Georgia, and is employed as a nurse by the Bulloch County Hospital. On the afternoon of August 12, 1939, she left Statesboro en route to Windsor, South Carolina, to visit her parents. In company with the superintendent of the hospital she left Statesboro by automobile about five o'clock in the afternoon for Swainsboro, intending to catch a bus at that point for Augusta and thence to the home of her parents at Windsor, a short distance from Augusta. The bus was due to arrive at Swainsboro at 7.45 p. m., but was two hours late, and did not arrive until 9.50 p. m. The plaintiff caught the bus, but did not arrive at Augusta until 11.55 p. m. Upon arriving at Augusta and finding the defendants' restaurant open for business, she went therein and placed an order for some sandwiches and coffee, which she paid for. While she was eating a lady attendant in said restaurant, Miss Jewel Crawford, with whom plaintiff was acquainted, engaged in conversation with her. Being short of change, and realizing that she might have to incur additional expenses on account of the delay, the plaintiff withdrew from her purse a check for $5, and inquired of said attendant as to whether she could get the check cashed for plaintiff. A copy of said check was attached to the petition as exhibit A. It was dated August 4, 1939, drawn on National Exchange Bank, Augusta, Ga., signed by J. F. Johnson, and payable to the order of cash. It was further alleged that the said attendant replied that she though that she could cash the check for plaintiff; whereupon she took the check and presented it to Jack Prince, one of defendants' employees in charge of said restaurant. Jack Prince referred the check to Ollie Prince, another employee of the defendants in said restaurant. Jack Prince and Ollie Prince are brothers of the defendant G. William Prince. The defendants own and operate, in connection with said restaurant, a gambling house and liquor store, and Ollie Prince, the elder brother, is in general charge of said business, and said check was referred to him as such manager by Jack Prince.
Said employees thereupon telephoned to the police headquarters in said city, and requested that they send officers to said restaurant. Shortly thereafter a policeman came into the restaurant, and the defendants' employees went into conference with him, and thereupon delivered plaintiff's check to him. Said officer then came over to the table where plaintiff was sitting, with said check in his hand, in a commanding voice inquired of plaintiff, "Where did you get this check?" Within a few minutes thereafter several other officers came in and surrounded plaintiff. She was so shocked and frightened that she could hardly speak coherently, but she informed them as to where she obtained the check, and of the fact that it was a perfectly good check and would be paid when presented for payment to the bank upon which it was drawn. The officers refused to listen to her explanation and pleas, forced her to get up from the table before she had finished eating, placed her under arrest, put her in a patrol wagon, and conveyed her to the police barracks where she was locked up in an iron cell with common criminals and kept incarcerated until the next day. Said officers were summoned as aforesaid, and said check was turned over to them by the employees of the defendants, and plaintiff's arrest and incarceration were caused by and instigated by defendants acting by and through their said employees in charge of said restaurant. The aforesaid acts and conduct of the defendants by and through their said employees were an unlawful, unwarranted, and high-handed invasion of plaintiff's simple rights, her liberty, and her person. She had committed no offense of any kind to warrant or justify such outrageous acts and conduct of the defendants; that she was an invitee upon their premises, open for business at the time; and she was a patron of their place of business when she was arrested and incarcerated.
As a result of said unlawful, unwarranted, and high-handed acts and conduct of the defendants the plaintiff has suffered great humiliation, mental anguish, pain and suffering, and the nervous shock and strain incident thereto has caused her to suffer a complete nervous collapse, and her health is permanently and seriously impaired. By reason of the facts alleged she has been damaged in the sum of $10,000, for which amount she lays her claim against the defendants jointly and severally. By reason of the facts hereinbefore set out, and the defendants' wanton, unwarranted, and culpable acts and conduct, plaintiff is entitled to and claims punitive damages in the sum of $5000. She was well known to Miss Jewel Crawford, the defendants' employee, and she made known that fact to Jack and Ollie Prince at the time she presented the check to them, and stated to them that said check was in her opinion a perfectly good check. J. F. Johnson, the drawer of the check, was and is a well-known business man in Augusta, and was well known to the said Jack and Ollie Prince at the time the check was presented to them and was easily accessible to them at all times by telephone, had they any desire to inquire about the check. Said employees, taking advantage of their position and authority as managers of said business, and while acting in the course and within the scope of their employment, called in said officers and caused plaintiff's arrest at a time when they were in duty bound to protect her as an invitee and patron of said restaurant by the exercise of ordinary care, diligence, and prudence.
The defendants filed general and special demurrers to the petition, and upon amendment thereof renewed such demurrers. The trial judge sustained the demurrers and dismissed the action, and the plaintiff excepted. The defendants answered, denying liability, and alleging facts in justification of their conduct relative to the plaintiff's arrest. The plaintiff's demurrer to certain paragraphs of the answer was overruled, and the plaintiff excepted and assigns error on that ruling, in her bill of exceptions.
1. Generally a private person who causes or directs the arrest of another by an officer without a warrant may be held liable for false imprisonment, in the absence of justification. Therefore one who actively instigates or procures an arrest, without lawful process, is generally regarded as the principal for whom the officer acts, and he may be liable to respond in damages. But one who merely states to an officer what he knows of a supposed offense, even though he expresses the opinion that there is ground for the arrest, but without making any charge or requesting an arrest does not thereby make himself liable for false imprisonment. However maliciously and without probable cause the defendant may act in reporting to an officer facts which justify an arrest, if the arrest is made without his command, request, or direction, he is not liable. The mere fact that he asked that the law be enforced, without assuming and declaring or directing the precise procedure by the officer, will not make him liable. In order to render responsible a person causing the arrest of another without a warrant, it is not necessary that he direct the arrest in express terms. Ann. Cas. 1917E, 406; L.R.A. 1915E, 883; 22 Am. Jur. 376; Gordon v. Hogan, 114 Ga. 354 ( 40 S.E. 229). While it was held in Hammond v. D.C. Black Inc., 53 Ga. App. 609 ( 186 S.E. 775), that the "person calling the officers is not guilty of an illegal arrest where he does not direct or request the making of the arrest," it was not held that the direction had to be made in express terms. It is sufficient that the person alleged to have caused the plaintiff's arrest should by his conduct and acts have procured and directed the arrest. The Supreme Court, in Waters v. National Woolen Mills, 142 Ga. 133 (3) ( 82 S.E. 535), held: "A petition which alleged that the defendants caused certain detectives to go to plaintiff's room at a hotel where he resided, and to arrest, detain, and imprison him, without a warrant, in the police barracks of the city, thus depriving him of his personal liberty . . set forth a good cause of action, and the court erred in dismissing the petition on demurrer." It is contended by the defendants that the petition as amended failed to set out a cause of action against them, in that it did not appear therefrom that the plaintiff's alleged false arrest and imprisonment were caused by them or were at their direction or request. In other words, they contend that it plainly appears, from the allegations of the petition as amended, that the plaintiff's arrest was by the police officers without urging or instigation on the part of the defendants or any of their servants or employees acting within the scope of their employment, in that it appears that the police were merely summoned by the defendants' employees in charge of the restaurant, and the check which the plaintiff had requested them to cash for her was merely turned over to such police officers, who thereupon made the arrest upon their own initiative, without any warrant or any charges being preferred by the defendants against the plaintiff or any request being made by them for the plaintiff's arrest.
In considering this case, and in dealing with the question whether the allegations of the petition as amended set forth a cause of action or not, that is, whether the facts alleged show any liability upon the part of the defendants for the arrest of the plaintiff, the fact should be borne in mind that the plaintiff was in the defendants' place of business as an invitee, and she did not occupy the status of a mere stranger who entered the defendants' place of business to request the cashing of a check. It appeared from the petition before it was amended, that after the plaintiff had entered the defendants' restaurant, and while she was there as a customer on business, she asked one of the defendants' employees, a waitress, if she (the plaintiff) could get a check cashed at the restaurant; that this waitress took the check after stating that she thought that the check might be cashed; that the employees of the defendants "thereupon telephoned to the police headquarters in said city and requested that they send officers to said restaurant; that shortly thereafter a policeman came into the restaurant," and such employees immediately went into conference with him, and the officer then came over to where she was sitting; that the officers refused to listen to her explanation, but forced her up from the table and arrested her; and "that said officers were summoned as aforesaid, and said check was turned over to them by the said employees of the defendants, and plaintiff's arrest and incarceration was caused and instigated by the defendants acting by and through their said employees in charge of said restaurant." The defendants demurred on the ground that while it is alleged "that plaintiff's arrest and incarceration was caused and instigated by the defendants acting by and through their employees in charge of said restaurant," the employees are not named, nor is it alleged wherein and under what circumstances these defendants or their agents caused plaintiff's arrest or incarceration. The judge sustained this ground of demurrer, with leave to amend. The plaintiff thereupon filed an amendment alleging, in part, that "said employees, taking advantage of their position and authority as managers of said business, and while acting in the course and within the scope of their employment, called in said officers and caused plaintiff's arrest at a time when they were in duty bound to have protected plaintiff as an invitee and patron of said restaurant, by the exercise of ordinary care, diligence, and prudence."
The allegation that the defendants "called in said officers and caused plaintiff's arrest," when taken in connection with the context, where it is alleged that the arrest was "caused and instigated" by the defendants, amounts to an allegation that the defendants through their agents procured or directed the arrest of the plaintiff. The petition therefore set out a cause of action, and the court erred in sustaining the general demurrer.
2. The plaintiff assigns error also upon the overruling of demurrers interposed by her to certain paragraphs of the defendants' answer. An order of the court overruling a demurrer to a portion or all of a defendant's answer or plea is neither a final judgment nor a judgment which would be final if rendered as contended for. Neither is a judgment sustaining a demurrer to a plea and answer a final judgment to which a bill of exceptions will lie. Such a judgment, if rendered as contended for by the plaintiff, would not have been a final disposition of the case. When the judge sustained the general demurrer to the petition and dismissed the action, the case was at an end and out of court, unless the appellate courts, upon writ of error, should reverse that ruling. This court has just held that the judge erroneously sustained the demurrer and dismissed the action. When the remittitur from this court reaches the trial court the case will be pending therein as if the defendants' general demurrer to the petition had been overruled, or no demurrer had been interposed. The ruling complained of in the added assignment of error in the bill of exceptions, which was an order overruling the plaintiff's demurrer to the defendants' answer, is a mere pendente lite ruling. Code, §§ 6-701, 6-804; McRae v. Boykin, 50 Ga. App. 866 ( 179 S.E. 535); Childs v. New England c. Co., 184 Ga. 637 ( 192 S.E. 433); Turner v. Camp, 110 Ga. 631 ( 36 S.E. 76); Armor v. Stubbs, 150 Ga. 520 ( 104 S.E. 500); Thomas v. Berry, 151 Ga. 7 (4) ( 105 S.E. 478); Avery v. Graham, 26 Ga. App. 161 ( 105 S.E. 708); Donalsonville Oil Mill v. Robinson, 26 Ga. App. 181 ( 105 S.E. 719); Wyse v. McKinney, 42 Ga. App. 579 ( 157 S.E. 246); Reagin v. Stroud, 51 Ga. App. 405 ( 180 S.E. 763). Therefore the assignment of error to the order of the court overruling the demurrer to part of the defendants' answer is premature, it appearing that the case is pending in the trial court, and can not be now considered by this court. It is ordered, however, that the official copy of the bill of exceptions of file in the clerk's office in the trial court be, as to the assignment of error on the judgment overruling the plaintiff's demurrer to a part of the defendants' answer, retained in the trial court as exceptions pendente lite to that judgment.
Judgment reversed, with direction. Stephens, P. J., and Felton, J., concur.
While the petition as amended, after setting forth certain acts and conduct of the employees of the defendants, alleges that the plaintiff's arrest and incarceration "were caused by and instigated by defendants acting by and through the said employees in charge of said restaurant," this general allegation is only a conclusion of the pleader, unsupported by the specific facts alleged, and, under well-settled principles of law, must yield to them. Such a conclusion without supporting facts is not good even against a general demurrer. Jones v. Ezell, 134 Ga. 553 (5) ( 68 S.E. 303); Harper v. Lindsey, 162 Ga. 44, 47 ( 132 S.E. 639); Horton v. Sanchez, 57 Ga. App. 612, 617 ( 195 S.E. 873). It is shown by the petition as amended that the employees, including the manager, summoned a police officer to the defendants' place of business, inferably because of their suspicion that the plaintiff was seeking to cash a spurious check, and to obtain an investigation by such officer; that upon his arrival they conferred with him and placed the check in his hands for inspection; that without any direction or request by any of the defendants' employees the officer approached the plaintiff and inquired as to where she had obtained the check; that in a few moments other officers arrived, and, without any direction or request from any of the employees, surrounded the plaintiff and, after protestations from her as to her good faith in offering the check, forced her to abandon her table and took her away and incarcerated her. It is not shown that the employees took any part in the wrong of which the plaintiff complains, unless it could be said that the summoning of the police officer, conferring with him, and placing the check in his hands for inspection, would amount to a tortious act. In Hammond v. D.C. Black Inc., 53 Ga. App. 609 (supra), where an officer was summoned to the place of business of the defendant where a person was endeavoring to dispose of a diamond, and where, after the officer arrived and made an investigation and other officers were called, the person was taken from the premises and placed in jail, it was held: "Where a person calls police officers to his place of business where there is a man he suspects of having committed a crime, and the officers come, and after taking in the situation arrest the suspected person, and the arrest is illegal, the person calling the officers is not guilty of an illegal arrest where he does not direct or request the making of the arrest, notwithstanding he may acquiesce in the arrest and do nothing to prevent or discourage it." A nonsuit was granted in the Hammond case, and that judgment was affirmed by this court. On a motion to nonsuit, the rule is that the court shall construe the evidence most favorably to the plaintiff, and if upon such a construction the evidence would authorize a verdict for the plaintiff, it would be error to grant a nonsuit. But where the plaintiff's petition is challenged by a general demurrer, as in the present case, the rule is that the petition shall be construed most strongly against the pleader. Under the facts alleged, I am of the opinion, as the learned trial judge was, that the case of Hammond v. Black, supra, is controlling authority for sustaining the general demurrer, and I think the judgment of the trial court should be affirmed. I dissent from the ruling of the majority reversing the judgment of the trial court sustaining the defendants' general demurrer; but I concur in the ruling that the exception to the overruling of the plaintiff's demurrer to the defendants' answer was prematurely brought to this court.