Clewley v. Brown, Thomson, Inc.

• Decision Date: 05 November 1935
• Citation: 181 A. 531,120 Conn. 440
• Parties: CLEWLEY v. BROWN, THOMSON, Inc.
• Court: Connecticut Supreme Court

181 A. 531

120 Conn. 440

CLEWLEY v. BROWN, THOMSON, Inc.

Supreme Court of Errors of Connecticut.

November 5, 1935

Appeal from Superior Court, Hartford County; Frank P. McEvoy and Arthur F. Ells, Judges.

Action by Charles F. Clewley against Brown, Thomson, Inc., to recover damages for false arrest and imprisonment. A demurrer to the complaint was overruled, and plaintiff was awarded a verdict, and from the judgment for plaintiff, defendant appeals.

Error judgment set aside, and new trial ordered.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

Wallace W. Brown, and J. Harold Williams, both of Hartford, for appellant.

Louis M. Schatz and Joseph B. Griffin, both of Hartford (Nathan A Schatz, of Hartford, on the brief), for appellee.

MALTBIE, Chief Justice.

In his complaint the plaintiff alleged that on or about August 6, 1932, he was an automobile salesman for the defendant, whose place of business is in Hartford; that in pursuance of an arrangement he had with it which permitted him to do so, he took an automobile and drove to Rhode Island; that due to a physical ailment his return to Hartford was delayed; that when he did return to Hartford he was accompanied by an agent of the defendant, to whom he related the circumstances which caused his failure to return promptly; that on his arrival he was arrested and confined in jail; that he was, visited there by the general manager of the defendant who told him that the matter had been arranged and advised him to plead guilty; that he refused, was on August 16th presented in court and found guilty of taking the automobile without permission; that he gave notice of an appeal, and, being unable to furnish bonds, was further confined in jail; that on August 26th his sentence was changed to one of imprisonment in the jail for thirty days, the sentence to date from August 16th; that shortly thereafter he was released; that the warrant for his arrest was issued at the request of the defendant without cause and the conviction was based upon false testimony by its agent; and that the damages he sustained were due to the malicious acts of the defendant in causing his arrest and detention when it knew he was lawfully in possession of the automobile and that it had no cause of action against him.

The conviction of the plaintiff would of course be a defense to any action he might bring against the defendant for malicious prosecution. McGann v. Allen, 105 Conn. 177, 188, 134 A. 810; Fusario v. Cavallaro, 108 Conn. 40, 42, 142 A. 391. Recognizing this, the plaintiff rested his claim upon the contention that an action for false imprisonment lies where one is confined under a process which is valid but is procured without there being any cause of action. In Stoddard v. Bird, Kirby, 65, the plaintiff sued to recover damages for his arrest and imprisonment upon civil process in an action in which a judgment of debt was subsequently recovered against him. It was agreed that the defendant had no cause of action against the plaintiff. The court was divided, separate opinions being rendered by the judges; the Chief Justice and two judges agreed that the verdict in the plaintiff's favor should be sustained, but Judges Ellsworth and Sherman dissented. In Luddington v. Peck, 2 Conn. 700, the plaintiff sued in trespass for the taking of his body under an alias execution after the original had been paid and returned to court but without indorsement. The court held that as the alias execution was regularly issued upon a valid judgment and was not void on its face, the plaintiff could not recover. Swift, C.J., said: " Trespass will not lie for an act done under a legal process, regularly issuing from a court of competent jurisdiction. Case only will lie; and that on the ground of malice, and want of probable cause. Trespass will lie only in cases where the process is irregular, and void upon the face of it. The question, then, in this case is, whether the execution, by force of which the plaintiff was imprisoned, was regularly issued upon a valid judgment?" In Watson v. Watson, 9 Conn. 140, 23 Am. Dec. 324, a similar conclusion was...