The testimony of the witnesses Chavers and Clark stressed in the application for rehearing, was not overlooked in disposing of the questions presented by the appeal. The statement of Chavers was: "That at that time he was a commissioned officer of this county, and had been since the first of August, 1934." This may be literally true and still he had no more authority than any other person to make an arrest. The same is true of the witness Clark who testified: "When she worked for them [defendant] she was a clerk in the store, that at the same time she had a commission from the sheriff of Etowah County." But the nature of her commission and the authority which it conferred was not stated. The burden here was on the defendant, and the facts were peculiarly within the knowledge of its witnesses.
Moreover, the evidence shows without dispute that said witnesses were the agents or servants of the defendant, and were at the time of the arrest in the active discharge of their duties as such. They were not "public officers" within the meaning of the rule stated in 25 C.J. 565, § 179, and reproduced in the opinion on original consideration, relievingpublic officers from liability for punitive damages for unlawful arrest, and imprisonment if they act "innocently, in good faith, without malice in fact or in law." Said Chavers and Clark were not such public officers as specified in section 3261, having authority, in case of emergency, to imprison the person arrested without giving such person the benefit of being brought before a magistrate as required by section 3269, of the Code 1923.
Hayes, the officer sued in the case of Hayes v. Mitchell,69 Ala. 452, was the marshal of the town of Oxford in the active discharge of his official duties and owed allegiance to no one except to the law and his conscience as a law officer.
The text of Corpus Juris is founded largely on the case of McCall v. McDowell et al., 15 Fed.Cas. p. 1235, No. 8,673, holding:
"1. In an action for false imprisonment, where the arrest complained of was illegal, but was caused by the defendant, while acting as commanding officer of a military department of the United States, without malice or intention to injure or oppress the plaintiff, but from good motives and considerations, involving the public peace and safety, the plaintiff is only entitled to recover compensatory damages. *Page 41
"2. The defendant having caused the arrest and imprisonment of the plaintiff, who was a civilian, and not amenable to military law, it was his duty to make provision against his being treated with undue harshness and severity, or subjected to any treatment or discipline not necessary and proper to restrain him of his liberty for the time being; and having failed to do so, and suffered the plaintiff to be confined in the guard house with drunken soldiers, and to be compelled to labor in common with military culprits, the damages for the false imprisonment must be enhanced on account of such treatment."
As before stated, the said Chavers and Clark, in making the arrest, as the undisputed evidence shows, were acting for and in the interest of their master the defendant, and even though they may have been commissioned to arrest, they were nevertheless, not public officers within the meaning of said rule.
It is familiar logic, as old as civilization, in accord with human experience, and supported by the highest authority that: "No man can serve two masters for either he will hate the one and love the other; or else he will hold to the one and despise the other." Matt. ii, 24.
The application is due to be overruled. It is so ordered.
Application overruled.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.