Burkland v. Bliss
| Decision Date | 19 December 1933 |
| Docket Number | 7431. |
| Citation | 252 N.W. 25,62 S.D. 91 |
| Parties | BURKLAND v. BLISS et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Clay County; A. B. Beck, Judge.
Action by John Burkland against William Bliss and others. From a judgment overruling defendants' demurrer, defendants appeal.
Affirmed.
W. A Bauman and Gunderson & Gunderson, all of Vermillion, and Danforth & Davenport, of Sioux Falls, for appellants.
Alan Bogue, of Parker, and Norman Ja quith, of Wakonda, for respondent.
Plaintiff instituted this action for the recovery of damages against William Bliss, Henry A. Walz, and the sureties on their official bonds and against Carl Viers. After reciting the election and the qualification of defendant Viers, as mayor of the city of Vermillion, the appointment and qualification of defendants Bliss and Walz, as police officers of that city, and the execution and delivery of official bonds by the police officers, the complaint alleges that Policeman Walz while acting under the direction and with the knowledge and consent of the officers of the city of Vermillion and particularly with the consent of the defendant Viers, armed himself with a tear gas gun; that "Henry A. Walz while acting within the scope of his duties and employment entered the Clay County Oil Company's Garage at Vermillion, South Dakota, where the plaintiff was conversing with several other persons, and told the plaintiff he wanted him to go with him to the jail at the court house in Vermillion, whereupon the plaintiff asked if he had a warrant for his arrest, and he said he did not, but that he wanted the plaintiff to go with him, and said to the plaintiff, 'I have a good notion to shoot you with this gas gun,' and immediately thereafter the carelessly, maliciously shot the plaintiff in the face with said tear gas gun, causing him to fall to the floor and rendering him unconscious"; that the plaintiff was taken to the jail in the Clay county courthouse by Walz and was confined therein from 10 o'clock in the forenoon until 9:30 o'clock in the evening of the same day; that defendant Viers "knew of the said arrest without a warrant, and knew that the said police officer had used a tear gas gun in making said arrest, and had shot the plaintiff with the same * * * but notwithstanding his knowledge of plaintiff's injuries and the extent thereof and the method and manner by which he had been injured, he permitted the plaintiff to be confined in said jail and to remain confined in said jail from ten o'clock in the forenoon until 9:30 in the evening, * * * without proper medical treatment"; that Viers "while mayor of the said city of Vermillion instructed defendant, Henry A. Walz * * * to arrest the plaintiff and the said Walz did arrest the plaintiff at the request of said Carl Viers without a warrant having been issued for his arrest, and was acting within the scope of his authority as a police officer of said city when he made said arrest"; that the defendant Bliss from about 1 o'clock in the forenoon of the day of the arrest "knew of the condition of the plaintiff," but notwithstanding such knowledge "kept and retained said plaintiff in jail during said afternoon and until about 9:30 o'clock in the evening and prevented anyone else from aiding and assisting the plaintiff"; and that the plaintiff had not committed any offense under the ordinances of the city of Vermillion or under the law of the state of South Dakota at the time of his arrest or prior thereto. There are also the general allegations that defendants "caused the plaintiff to be unlawfully, maliciously and falsely imprisoned," and that the arrest and false imprisonment were unlawful, without probable cause, and the result of actual malice. Actual and punitive damages are demanded. The separate demurrers of the defendants were overruled, and the appeal is from the order overruling such demurrers.
Counsel for the defendants insist that in the complaint two or more causes of action have been improperly united. The action of false imprisonment always includes at least the element of an assault in the technical sense. 25 C. J. 454. "Any exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment." 11 R. C. L. 793. "Such restraint can be accomplished only by some act or conduct equivalent to assault, actual or constructive." Cullen v. Dickinson, 33 S.D. 27, 144 N.W. 656, 657, 50 L. R. A. (N. S.) 987, Ann. Cas. 1916B, 115. If the restraint is combined with an assault with a dangerous weapon or with assault and battery, it does not change the character of the action. The alleged use of the tear gas gun is an element of damage, but does not state a separate cause of action.
It is also claimed by the appellants that the complaint alleges the commission of three different torts, and not a single false imprisonment by the defendants as joint tortfeasors. All persons who take part in or assist or abet in the commission of false imprisonment are joint tort-feasors and this without regard to whether a conspiracy had been entered into. Culver v. Burnside, 43 S.D. 398, 179 N.W. 490. The complaint does not allege that defendant Viers was an active participant, but pleads that Walz arrested plaintiff at the request of Viers without a warrant having been issued. The fact that defendant Bliss was not present when the arrest was made, or that he did not counsel or procure the arrest, furnishes no reason for holding that he cannot be joined as a party defendant. A review of the decisions leads us to conclude that his subsequent participation in the tort as alleged in the complaint would render him jointly liable with the other two defendants. 25 C. J. 497.
Appellants cite Northern Finance Corporation v. Midwest Commercial Credit Co. (S. D.) 239 N.W. 242 to sustain their contention that under the allegations of the complaint they are not joint tort-feasors. That was an action brought against successive purchasers of mortgaged property wrongfully sold by the mortgagor. The converters were not united in a common purpose, and it could not be said that the second converter became a participant in the original sale. It is not such a case as this where wrongdoers became participants to one continuous trespass.
The remaining inquiry is whether the sureties can be held liable for the alleged injuries sustained by the plaintiff. It is urged by the sureties that the bonds upon which plaintiff's action against them is predicated were...
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