Barker v. Washburn

• Decision Date: 03 January 1911
• Citation: 93 N.E. 958,200 N.Y. 280
• Parties: BARKER v. WASHBURN et al.
• Court: New York Court of Appeals Court of Appeals

200 N.Y. 280

93 N.E. 958

BARKER

v.WASHBURN et al.

Court of Appeals of New York.

Jan. 3, 1911.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Franklin H. Barker, Ansel W. Sutliff's committee, against James H. Washburn and others. From a judgment of the Appellate Division of the Supreme Court, Third Department (128 App. Div. 931,113 N. Y. Supp. 1124), affirming a judgment for plaintiff, defendants appeal. Affirmed.

Fred Linus Carroll, for appellants.

Frank Talbot, for respondent.

HISCOCK, J.

We are led to the consideration of rather unusual facts in this action which was brought for alleged false imprisonment. It was instituted by the respondent as committee of one Sutliff, an incompetent person, to recover for the alleged unlawful removal and restraint of his ward by the appellants. This conduct on the part of the latter is claimed to have been in violation of the will and wishes both of the incompetent himself and of the respondent as his committee, and apparently the real motive involved in this controversy over the possession of the idiot's body is the purpose to reap a profit on his services as a farm laborer.

Several years before the occurrences in question, the respondent was duly appointed committee of said Sutliff on a finding duly made in lunacy proceedings that the latter was ‘an idiot and incapable of managing or caring for his own affairs or business.’ For several years the incompetent personwas allowed by his committee to live with the appellants, and then he was taken away by the former and hired out to a third party. Thereafter as the evidence unquestionably permitted the jury to find, the appellants on two occasions took the incompetent person away under such circumstances as permitted the jury to find that such removal was against the will of the incompetent person, if he had one, and amounted to a false imprisonment. The evidence likewise permitted the jury of find that, not only was the removal and retention on these occasions against the will of the committee, although consideration of one of them so far as the committee was concerned was withdrawn from the jury, but that at other times the appellants without physical force against the will and wishes of said committee enticed the incompetent away and on one occasion aided in concealing his whereabouts from the committee for several weeks. In addition to damages compensatory for the loss of wages which might have been earned by the incompetent, the jury were allowed to award punitive damages, which they apparently did in a small amount.

Many of the questions argued by the counsel for the appellants on this appeal involve mere questions of evidence or familiar and well-settled principles applicable to such an action as this, and I deem it unnecessary to discuss these, contenting myself with saying that we have considered them and approve of the dispositipn thereof as made by the courts below. There are two questions of a less familiar character which may be briefly considered.

The respondent's case was sustained in part by the evidence of the incompetent himself. Basing his claim on the inquisition and on some of the evidence presented in the lunacy proceeding, it is argued by counsel for appellants that that proceeding and the order appointing his committee adjudicated that the incompetent was so completely and permanently devoid of intelligence that he could not be assumed to understand the object and nature of testimony, and that, therefore, he should not have been sworn and received as a witness. In my judgment this contention is not well founded. The inquisition was found several years before the trial of this action, and the committee was appointed on the ground that Sutliff was an idiot and incompetent to manage his own affairs. It did not by any means follow from this as a matter of law that he was, and for years would continue to be, so utterly lacking in intelligence that he could not appreciate at all the relationship and significance of facts, and would not be able to understand the obligation of an oath and describe accurately what those facts were. We know both as a matter of definition and of observation that a person who would be judicially declared incompetent and unable to manage his affairs might nevertheless possess sufficient intelligence to be truthful and to describe simple occurrences as they were. When this person was offered as a witness, he was interrogated both by the court and counsel for the purpose of determining his competency as a witness, and thereafter the court decided that he should be sworn. This determination was undoubtedly within the power of the trial court and the testimony which was subsequently given and the accuracy of which was tested by long and exacting cross-examination in my judgment bears on its face such marks of intelligence and comprehension as fully justify the disposition which the trial judge made of the question presented to him. If the appellants desired any special instructions to the jury concerning the weight to be given to this evidence they should have asked for them.

The other question to which reference has been made is the more interesting and novel one.

Apparently this case was tried on the theory that the appellants might be found guilty of false imprisonment either because they...