Cooper v. Johnson

• Decision Date: 30 April 1884
• Parties: COOPER v. JOHNSON, et al., Appellants.
• Court: Missouri Supreme Court

81 Mo. 483

COOPER

v.JOHNSON, et al., Appellants.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Henry Circuit Court.--HON. J. B. GANTT, Judge.

AFFIRMED.

M. A. Fyke, R. C. McBeth and F. P. Wright for appellants.

The court erred in overruling the demurrer to the evidence. There was nothing in plaintiff's evidence to show that defendant Johnson was present at the time of the arrest, or in any wise participated in it, or even knew of it until after it was made. The court erred in its instructions to the jury on the part of plaintiff, and in refusing instructions asked by defendant. As the principals were acquitted Johnson cannot be held liable, when nothing was done by his direction. This is a civil case, and, as at common law, if the principal is acquitted, the accessory cannot be held liable. 2 Starkie on Ev., 14.

C. A. Calvird and Charles B. Wilson for respondent.

In trespass all are principals. Canifax v. Chapman, 7 Mo. 175; Page v. Freeman, 19 Mo. 421; Murphy v. Wilson, 44 Mo. 313; Goetz v. Ambs, 27 Mo. 32; State v. Jones, 83 N. C. 606, 607. The evidence of the plaintiff directly implicated defendants Cannon, McDowell and Johnson. The instructions given by the court, taken as a whole, fairly presented the law applicable to the case. The word “countenance” was properly used in the instruction. Its use has been approved in adjudicated cases. Brown v. Perkins, 1 Allen 89, 98; McManus v. Lee, 43 Mo. 208. Instructions are to be considered in their entirety and relations to each other, and this court will not reverse because of some verbal defect in one of them, when it is obvious from the whole context the defect did not mislead. McKeon v. Citizens' R'y, 43 Mo. 405; Nelson v. Foster, 66 Mo. 381; Parton v. McAdoo, 68 Mo. 327; Brown v. Ins. Co., 68 Mo. 133; Noble v. Blount, 77 Mo. 235. It is not error to refuse instructions embraced in those given. Graham v. Railroad Co., 66 Mo. 536; State v. Walton, 74 Mo. 271; Nugent v. Curran, 77 Mo. 323.

HENRY, J.

This suit is for assault and false imprisonment. The plaintiff resided about two miles and a half from the town of Montrose, and went to the town to procure medi cines for his wife, and when on his way home was arrested in a street of the town by defendants, Cannon and McDonald and forcibly and rudely taken to the calaboose, where he was locked up for about an hour. He testified that after he had been confined in the calaboose, as above stated, he was taken before Blew, one of the defendants, who was mayor of the town, who discharged him and he went home, but returned the same afternoon and met defendant, Johnson, and asked him the names of the men who had arrested him. Johnson said it made no difference, that they acted under orders of the board, and if the board had not authority he would look to it, and they would have a civil suit and no bad feeling about it. He also testified that Johnson told him that he was one of the board (and there seems to be no question that he was) and that the reason they had it done was that four or five persons had been to the board yesterday and told them plaintiff had been to Clinton, exposed to small-pox. Collins testified that while the marshal was taking plaintiff to the calaboose, he saw plaintiff's son-in-law, Rhodes, following, and heard Johnson remark as they passed, that if Rhodes didn't mind he would get his head broken by the marshal. These witnesses were contradicted by witnesses introduced by the defense in all those portions of the testimony tending to implicate Johnson. The court at plaintiff's instance gave the following instructions:

1. If the jury finds from the evidence that the defendant, McDonald and one Cannon, on or about the 19th day of February, 1881, at the town of Montrose, in this county, seized the plaintiff and against his will forcibly carried or led him through a street of said town and confined him in a room or calaboose without any warrant authorizing them so to do, and that the same was willfully or maliciously done; and if the jury further believe from the evidence that the defendants, Blew and Johnson, or either of them, were present aiding, or abetting or encouraging the act, or that they, or either of them, in any way or by any means, either before the said arrest or at the time thereof, countenanced or approved the same, then either of them so aiding or countenancing the same, are liable as if he or they had actually seized and imprisoned the plaintiff, but the mere presence of said defendants, or either of them, will not of itself render them liable unless they were approving encouraging, countenancing the same. Malice, as used, in this case, does not mean mere spite or ill-will toward plaintiff by defendants, but it means a wrongful act, intentionally done without legal justification or excuse.

2. The court further instructs the jury that while the burden of proof rests upon the plaintiff, the burden of law does not require that he should prove by direct testimony that either the defendants, Blew or Johnson, were heard to give a direct order to either McDonald or Cannon to arrest the plaintiff, but if the jury believe from all the facts and circumstances in evidence that both or either of said defendants encouraged, countenanced or approved the arrest or imprisonment, and that such arrest and imprisonment was without warrant and wrongful, then the jury should find for the plaintiff against such defendants, so believed by them from the evidence to have incited, encouraged, countenanced or approved such arrest.

3. The court instructs the jury that the fact that McDonald and Cannon were marshals of said town of Montrose did not justify them in arresting plaintiff or incarcerating him in the town prison without a warrant directing them so to do, and the fact that Blew and Johnson were members of thetown board of said town did not authorize them, or eitherof them, in directing such arrest and incarceration.

4. The court instructs the jury that if they find for the plaintiff they will, in assessing the damages, allow plaintiff such amount as they think will compensate him for his loss of time and any other damages he may have actually suffered, and, in addition thereto, if the jury believes that the trespass was committed willfully and maliciously, as heretofore defined, they may also allow such further damages as they see fit as smart money or exemplary damages, not exceeding the amount of $5,000, and in estimating the damages they may take into consideration the standing of the parties in the community, and also the mental anguish and pain which plaintiff suffered from such arrest and incarceration.

5. The jury are instructed that they may find against one or more of the defendants, and in favor of the others.

The court on its own motion, against the objections of defendants, gave the following instructions to the jury, to-wit:

5. The court instructs the jury that in this case the burden of proof is on the plaintiff to establish by a preponderance of evidence that the defendants, Blew and Johnson, or either of them, were present at the time of the committing of the trespass against plaintiff, aiding or abetting the said McDonald and Cannon in making the said arrest, or by some act or means approving or encouraging or countenancing the same, or that being absent said arrest was made with the knowledge or endorsement of said Blew and Johnson, or either of them, prior to the making of the same, and the mere presence of either Blew or Johnson at the time the arrest was made will not...