Bailey v. Warner

• Citation: 118 F. 395
• Decision Date: 20 October 1902
• Docket Number: 1,581
• Parties: BAILEY et al v. WARNER.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

118 F. 395

BAILEY et al v. WARNER.

No. 1,581

United States Court of Appeals, Eighth Circuit.

October 20, 1902

Greeley W. Whitford and Tom E. McClelland, for plaintiffs in error.

J. M Ellis and Warwick M. Downing, for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District judge.

THAYER Circuit Judge.

This is an action which Henry E. Warner, the defendant in error brought against Dewey C. Bailey, who was the United States marshal for the district of Colorado, the United States Fidelity & Guaranty Company being the surety in said bond. The breach complained of was that Bailey arrested Warner under a warrant against one Benjamin F. Lissauer, which warrant had been issued on a complaint made by the United States attorney for the district of Colorado that said Lissauer had been indicted in the Indian territory for unlawfully selling liquor in that territory, and was a fugitive from justice at that time within the district of Colorado. The complaint averred that the plaintiff was arrested on a public street in the city of Denver by a deputy United States marshal, and was compelled to go along said street for some distance to the marshal's office; that no warrant was exhibited to the plaintiff when he was thus arrested, although he requested the deputy to exhibit his authority for making the arrest, if he had any; that the warrant aforesaid was exhibited as the sole authority for the arrest, only when he had reached the marshal's office and had again demanded by what authority the arrest was made that when the warrant was produced he informed the marshal that his name was not Lissauer, and that he had never been in the Indian Territory, but that notwithstanding such representations he was held in custody for some four hours and compelled to give a bond for his appearance before a United States commissioner, and was not finally discharged for some 10 or 12 days, when he was released without a hearing. The testimony at the trial disclosed that the arrest was clearly unlawful, and that the marshal was guilty of a trespass amounting to a false imprisonment in taking the plaintiff into his custody under a warrant which directed the arrest of an entirely different person. The jury returned a verdict against the marshal and his surety, the United States Fidelity & Guaranty Company, in the sum of $600. The trial court refused to set the verdict aside, and the case was brought to this court on a writ of error by the defendants in the lower court, the chief complaint being that some incompetent evidence was admitted in the course of the trial, and that certain instructions were refused which ought to have been given.

It is claimed that an error was committed by the trial court in permitting a witness by the name of Merritt to testify as to what took place between himself and Bailey, the marshal, before the plaintiff had been discharged, but we fail to see that the admission of this testimony was in any respect improper. Merritt called on the marshal with a telegram from Knoxville, Tenn., which tended to establish the plaintiff's identity, and to show that he was a reputable person, and that he was not the person against whom the warrant was issued, who had been indicted in the Indian Territory. Merritt exhibited this telegram to the marshal, and had some conversation with him on the subject of the arrest, which the witness detailed fully, and, while the conversation may not have been very important, it was clearly admissible against the defendant, with whom the conversation was held.

The plaintiff also testified that he was by occupation a newspaper reporter; that during the week succeeding his arrest and prior to his discharge he applied to several newspapers for employment as a reporter; that he was asked on each occasion if he had been released from arrest, and on replying that he had not been released was told by the persons to whom he applied for employment that they had no place for him. This testimony was objected to at the trial and an exception was saved on account of its admission, but we think that it was entirely competent as tending to show the actual damage which the plaintiff had sustained by reason of the unlawful act of the marshal. The fact that such inquiries were made, and that he was refused work, showed that the fact of his arrest was known to those from whom ...