Bursack v. Davis

• Citation: 199 Wis. 115,225 N.W. 738
• Parties: BURSACK v. DAVIS.
• Decision Date: 04 June 1929
• Court: United States State Supreme Court of Wisconsin

199 Wis. 115

225 N.W. 738

BURSACK

v.DAVIS.

Supreme Court of Wisconsin.

June 4, 1929.

Appeal from a judgment of the Circuit Court for Marquette County; Chester A. Fowler, Circuit Judge.

Action by Edwin E. Bursack against A. B. Davis. From a judgment for plaintiff, defendant appeals. Affirmed.--[By Editorial Staff.]

This action, commenced April 21, 1928, was to recover damages from the defendant for false imprisonment and assault and battery March 28, 1928. October 2d trial, resulting in judgment for $810, upon which judgment for plaintiff was entered November 12th, and defendant appeals.

Defendant was elected constable and appointed marshal in the town of Moundville, said county.

From the complaint and evidence it appeared that plaintiff had stopped his automobile truck in the village of Endeavor, said town, and, as he was about to re-enter the same, was asked by defendant if said plaintiff had his driver's license and one for said vehicle. The driver's license was produced and shown to defendant. Plaintiff then said that he had made application to the secretary of state for an automobile license, but had not as yet received the automobile plates to be attached to the said vehicle. He then showed defendant a written receipt for the amount requisite for obtaining such a license, signed by a firm engaged in the garage business at the nearby village where he had purchased the vehicle. It was dated March 13th, and, had on the face thereof, “for license.” Plaintiff inquired of the defendant who he was, and was told by defendant and bystanders that he was an officer. Defendant then told plaintiff he was arrested and must go with him to a justice of the peace in the village, and at that time struck plaintiff on the head with the butt of the revolver defendant was then carrying. The plaintiff then drove his car, accompanied by the defendant, to the justice of the peace, by whom he was told he was discharged; no complaint being then made against him or further proceedings had.

The answer asserted, among other things, that, upon the failure of plaintiff to exhibit any license for the car or receipt showing the payment of such, defendant endeavored to arrest the plaintiff, who then violently resisted arrest; that defendant used no more force than was necessary to complete the arrest and to protect himself from the assault of the plaintiff, and defendant slightly beat and bruised him, took him into custody, and required his appearance before the nearest magistrate; that all of such was done wholly in the discharge of his lawful duty as a police officer.

As a further defense, he alleged that the arrest and purported injuries to plaintiff were invited by plaintiff's words and conduct and pursuant to an arrangement between the plaintiff and his partner, whom he had previously arrested for a similar offense.

The jury found compensatory damages of $650, and exemplary damages of $160. After the usual motions, the court granted judgment for plaintiff.H. B. Rogers, of Portage, for appellant.

Vincent F. McNamara, of Montello, for respondent.

ESCHWEILER, J.

It is conceded that the arrest was made and that defendant did strike the plaintiff over the head with the butt of his revolver.

There is a dispute in the testimony as to the details of the transaction, but we deem it unnecessary to discuss them.

Defendant contends that there was no question of false arrest to be submitted to the jury, and that the conceded absence of license plates attached to the vehicle was sufficient to justify the defendant as police officer in taking the plaintiff into custody and taking him before the magistrate. This contention is based upon the statute; the parts material for consideration being as follows:

“Section 85.04 (1). No automobile, motor truck, * * * shall be operated upon any highway unless the same shall have been registered or application for registration shall have been made to the secretary of state and the registration fee paid. Any person who shall operate any such vehicle upon any highway after March 15th, unless the same shall have been registered, or application made, as hereinbefore provided, may be arrested by any sheriff, * * * marshal, constable, or any other police officer, and brought before any * * * justice of the peace. Such * * * justice shall in addition to imposing the penalty provided by section 85.22 require such person to make application for registration and pay the fee therefor, and two dollars in addition thereto. Such judge or justice shall forthwith forward such application and the fee to the secretary of state, and pay the two dollars collected in addition to the registration fee, to the officer making the arrest. The absence of number plates shall be prima facie evidence that the vehicle is not registered.”

2. “This provides for the form of the application and that blanks shall be supplied to the several county clerks and as to the statements required in the same.”

3. “The secretary of state shall register the vehicle described in the application, giving it a distinguishing number, and shall thereupon issue to the applicant a certificate of registration and title, which shall contain the name, * * * the date of registration, * * * and furnish him registration number plates. Said certificate * * * shall always be in the possession of the operator or firmly attached to some accessible part of the vehicle described therein.”

4. (a), (b), (c), (d), (dm), (e), (f), (g), are provisions as to the amount of such registration fees and other provisions.

4. (h) “* * * The legal date of application for registration shall, in all cases, be the date of receipt of the application at the office of the secretary of state.”

The plaintiff's uncontradicted testimony was that he paid the required amount for the license fee, made out the appropriate application, and saw the check or draft for the amount so obtained in an envelope with the application for registration, and that he (the plaintiff), deposited the same in the mail addressed to the secretary of state. The original application itself was not offered in evidence; neither was there any certificate from the secretary of state or any direct testimony as to when plaintiff's application for license was actually received in the office of the secretary of state.

The trial court instructed the jury that under this statute the absence of the license plate is prima facie evidence of...