Black v. Marsh

• Decision Date: 24 April 1903
• Citation: 31 Ind.App. 53,67 N.E. 201
• Parties: BLACK et al. v. MARSH.
• Court: Indiana Appellate Court

31 Ind.App. 53

67 N.E. 201

BLACK et al.

v.MARSH.

Appellate Court of Indiana, Division No. 2.

April 24, 1903.

Appeal from Circuit Court, Putnam County; P. O. Colliver, Judge.

Action by Frank Nelson Marsh against George W. Black and another. Judgment for plaintiff as against defendant Black, who appeals. Reversed.Moore Bros., for appellant. Smiley & McNay, for appellee.

ROBY, C. J.

This action was begun by the appellee against Richard M. Bunten and George W. Black to recover damages for false imprisonment. Upon a verdict against Black assessing damages at $500, and in favor of Bunten, judgment was rendered, from which Black appeals.

The first error assigned in that the complaint does not state facts sufficient to constitute a cause of action. The second assignment is that the court erred in overruling appellant's demurrer to the complaint. No objection to the sufficiency of the complaint has been pointed out, and none is known.

The third assignment is that the court erred in overruling appellant's motion for a separate trial. The suit was brought against two persons as joint tort feasors. The appellant might have elected to sue one of them without joining another. Hoosier Stone Co. v. McCain, 133 Ind. 231, 31 N. E. 956. Having joined them, he was entitled to a trial of the issue and judgment in accordance with the proof made. Section 577, Burns' Rev. St. 1901. No error was committed in overruling the motion.

The fourth assignment is that the court erred in overruling appellant's motion for a new trial. Numerous grounds for a new trial were stated in the motion, among them that the court erred in admitting, over the objection of appellant, and as evidence against him, the deposition of S. W. Renner, and that it erred in refusing to instruct the jury that such evidence should not be considered as against appellant. The evidence in the case discloses that Bunten was the sheriff of the county; that he arrested the appellee, and confined him in the county jail, without warrant or reason, except a suspicion, communicated to him by his codefendant, the appellant, that appellee was a horse thief. There does not seem to have been any apparent ground for the suspicion, which was, in fact, wholly without foundation. Acting upon it, however, Bunten arrested appellee, imprisoned him in the county jail from Saturday noon until the following Monday at half past four in the afternoon. The evidence was ample to sustain a verdict against Bunten, but the jury found in his favor. The verdict against appellant was procured upon the theory that he improperly induced the officer to make the arrest without warrant, and without any offense having been committed. Veneman v. Jones, 118 Ind. 41, 45, 20 N. E. 644, 10 Am. St. Rep. 100. Whether appellant procured and directed the unlawful arrest was a question of fact. Carson v. Dessau, 142 N. Y. 445, 37 N. E. 493;Cunningham v. Seattle, etc., 3 Wash. 471, 28 Pac. 745;Pearce v. Needham, 37 Ill. App. 93. Upon this question the evidence was conflicting. Appellant's testimony tended to exonerate him from responsibility. Upon the other hand, there was evidence sufficient to support the verdict against him. The deposition of the witness Renner was taken on the behalf of Bunten. Notice was given to appellee. No notice was given to appellant, and he was not present in person or by attorney at the taking of the deposition. Renner's testimony related principally to a conversation between Bunten and appellant prior to the detention and imprisonment of appellee, and relative thereto, and tended to show that appellant procured and directed the arrest. Objection was made to the admission of the deposition as against him when it was offered in evidence. The objection was overruled, and an exception reserved. Appellant, at the proper time, asked that the jury be instructed “that the deposition of S. W. Renner, read in evidence by the defendant Bunten in his own behalf, cannot be considered by the jury as against defendant Black, or as evidence against him in said cause.” The court refused to give the...