Archie L. Parker v. Victor E. Roberts

• Decision Date: 03 November 1925
• Parties: ARCHIE L. PARKER v. VICTOR E. ROBERTS ET AL
• Court: Vermont Supreme Court

131 A. 21

99 Vt. 219

ARCHIE L. PARKER v. VICTOR E. ROBERTS ET AL

Supreme Court of Vermont

November 3, 1925

October Term, 1925.

ACTION OF TORT for false imprisonment. Plea, general issue by all defendants, and special plea of justification by defendants Stafford and Flint. Trial by jury at the September Term 1924, Orleans County, Graham, J., presiding. Verdict of guilty and judgment on verdict. The defendants excepted. The opinion states the case.

Judgment affirmed except as to the question of damages and as to that question, judgment is reversed and cause remanded.

W W. Reirden for defendant Victor E. Roberts; Arthur L. Graves for defendant John L. Stafford; Shields & Conant for defendant Frederick A. Flint.

Albert Farman and David E. Porter for the plaintiff.

Present: WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

SLACK

The action is tort for false imprisonment. The plaintiff was arrested by defendant Stafford, who was then constable of the town of Lyndon, at Newport, in Orleans County on the evening of September 4, 1923, and the following morning was committed to the Caledonia county jail, of which defendant Flint was then keeper. The arrest and commitment were made under and by virtue of a body writ in which this plaintiff was defendant and this defendant Roberts was plaintiff, returnable before a justice of the peace at the office of W. T. Morse in Lyndonville, in the county of Caledonia. The return day in the writ, as it appeared at the trial, was September 15, 1923, but the plaintiff claimed, and his evidence tended to show, that the writ when issued was returnable sometime the preceding August, and that the return day was changed after the arrest and commitment. The writ never was returned to the magistrate who issued it. All of the defendants pleaded the general issue, and Stafford and Flint pleaded justification under said process.

Since the validity of the process is material to several of the questions raised, we first consider that.

The writ was made by W. T. Morse, the respondent in the contempt proceedings reported in the 98 Vt. 85, 126 A. 550, 36 A.L.R. 527. The action is denominated by him, in the writ, "an action on mtg. note." The declaration contains the common counts in assumpsit, which are followed by the allegation: "Suit is brought for misconversion of said chattel mortgage security for said note to the damage and injury of said plaintiff," etc. The defendants contend that the declaration contains but a single count, and that such count is in tort; but this claim is untenable. The declaration either sounds in contract only or it contains counts in contract and a count in tort. We construe it to sound in contract only. The allegation respecting misconversion, which is the only intimation of tortious conduct in the entire declaration, contains neither form nor substance sufficient to constitute a count in tort. But, whether the declaration be construed to sound in contract only or to contain counts in contract and a count in tort, the result is the same, since the writ having issued as a capias was absolutely void on its face (G. L. 2359; Roy v. Phelps, 83 Vt. 174, 75 A. 13; Caldbeck v. Simanton, 82 Vt. 69, 71 A. 881, 20 L.R.A. [N.S.] 844), and, being so, it afforded no protection to those acting under it. Since the process, because void, was no protection to either Stafford or Flint, neither the failure of Stafford to serve it the requisite number of days before the return day, nor his failure to return it to the magistrate who issued it, nor the waiver by plaintiff of his right to be committed to the Orleans county jail, were material on the question of their liability. The court did not err, therefore, in directing a verdict against Stafford.

The defendant Roberts did not undertake to justify, but defended on the ground that he had no knowledge of the writ on which the arrest and commitment were made until the day following the commitment, but understood that Stafford was acting under another and different writ, and to the action of the court in directing a verdict against him he excepted. The substance of the evidence which he claims entitled him to go to the jury is that in October, 1922, nearly, or quite, eleven months before Parker was arrested, Roberts procured a lawyer to make a writ in his favor against Parker, which writ he soon after delivered to Stafford to serve; that that writ, for anything Roberts knew, was in Stafford's hands up to and at the time of the arrest; that he did not know that Stafford had any other writ in his favor against Parker; that he never knew anything about the Morse writ until after Parker had been committed thereon; and that before starting out on the day of the arrest he inquired of Stafford, "whether the writ he had was all right." But no evidence was offered respecting the nature of the writ Roberts had made in October, 1922--whether it was a capias or summons, or that Roberts had any knowledge or understanding concerning that matter, or that such writ had in any way been kept alive. Neither did it appear what information, if any, Roberts received from Stafford in reply to his inquiry "whether the writ he had was all right." On the other hand, it appeared that on the day of the arrest Stafford informed Roberts where Parker was then living, namely, in the vicinity of North Troy, and requested Roberts to carry him by automobile from Lyndonville to Parker's home; that Roberts went with Stafford as requested, was present when Parker was arrested, afterwards carried Stafford and Parker to St. Johnsbury, was present when Stafford committed Parker to the Caledonia county jail, and that Roberts knew the purpose of the trip before he and Stafford left Lyndonville.

In these circumstances, the court did not err in directing a verdict against Roberts. Mr. Cooley in his work on Torts, (3rd. ed.) 319 says, "All who aid, direct, advise or encourage the unlawful arrest of a person are liable for the consequences." And such is the rule everywhere. That Roberts, by the conduct shown, aided and encouraged Stafford in doing what he did do was proved beyond a peradventure; and Roberts could not escape liability for his acts by showing that he understood that Stafford was proceeding under process which Roberts was legally bound to know had ceased, by reason of age, to afford protection to anyone. In other words, it appeared from Roberts' own testimony that he aided and encouraged the arrest of Parker, in his own behalf, on process which, for aught that appeared, the law would presume void, a fact of which Roberts was presumed to have knowledge.

The defendants excepted to the failure of the court to instruct the jury that in determining the amount of actual damages they should deduct from any sum which might be allowed...