Cline v. Tait

• Decision Date: 09 February 1945
• Docket Number: 8449.
• Citation: 155 P.2d 752,116 Mont. 571
• Parties: CLINE v. TAIT et al.
• Court: Montana Supreme Court

155 P.2d 752

116 Mont. 571

CLINE v. TAIT et al.

No. 8449.

Supreme Court of Montana

February 9, 1945

Appeal from District Court, Eighth District, Cascade County; C. F Holt, Judge.

Action by Othel Cline against Ralph Tait and another for false imprisonment. Judgment for plaintiff, and defendants appeal.

Remanded with directions to grant a new trial unless plaintiff files a remittitur.

ADAIR J., dissenting.

Lew L Callaway, M. J. Thomas, and Ralph J. Anderson, all of Helena, for appellants.

G. J. Jeffries, of Roundup, and E. J. Stromnes, of Great Falls, for respondent.

CHEADLE Justice.

On a previous appeal the judgment of the district court was reversed and a new trial ordered. Cline v. Tait, 113 Mont. 475, 129 P.2d 89. The present appeal is from a judgment for plaintiff on the second trial.

The action was brought for the recovery of damages from the defendant Tait and the surety on his official bond, for the false imprisonment of plaintiff. By stipulation prior to the first trial the question of unlawful arrest was eliminated from the case. A statement of the case appears in our former opinion and we shall not encumber this opinion by repeating, except to quote the following statement of the issues: "Thus the case as submitted to the jury was whether defendant Tait arrested the plaintiff and if so whether the imprisonment subsequently became unlawful by an unreasonable delay in taking him before the nearest or most accessible magistrate in the county, and when the imprisonment by Tait ended; and in that case to determine what damages has been occasioned plaintiff by the unlawful imprisonment by Tait."

So far as the questions to be decided are concerned there is no substantial difference in the evidence and issues of the first and second trials.

Defendants have assigned twenty-nine errors, summed up by them in the following questions:

1. Whether Cline, the plaintiff was imprisoned by Tait or by Postal Inspectors Cooney and Mellish.

2. If Cline was detained by Tait, did he unnecessarily in the circumstances of the case delay in taking Cline before a committing magistrate?

3. The failure of the trial court to define and limit the issues in conformity with the opinion of this court on the former appeal.

4. The propriety of reception of evidence as to occurrences after plaintiff Cline was lodged in the Cascade county jail.

5. The propriety of receiving evidence relative to the arrest and the instruction to the jury as to what constitutes an unlawful arrest when the arrest was not an issue in this case.

6. Errors in the instructions to the jury as to the law of the case.

7. Excessiveness of the verdict.

Plaintiff's cause of action under the pleadings as they now stand, is for damages for false imprisonment by defendant Tait. Section 10988, Revised Codes, thus defines this offense: "False imprisonment is the unlawful violation of the personal liberty of another ***." In this case it is alleged to have resulted from the failure of defendant Tait, after his arrest of Cline, promptly to take the latter before a committing officer, as required by section 595 of Title 18 U.S.C.A., which provides:

"It shall be the duty of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offense, to take the defendant before the nearest United States commissioner or the nearest judicial officer having jurisdiction under existing laws for a hearing, commitment, or taking bail for trial ***." The judicial officers referred to by that section include the mayor of a city, justice of the peace, or other magistrate, of any state where the offender may be found, under the authority of section 591 of Title 18 U.S.C.A. Under the authorities this must be done as soon as the circumstances permit, with reasonable diligence, and without unnecessary delay. Von Arx v. Shafer, 9 Cir., 241 F. 649, L.R.A.1917F, 427; Anderson v. Averbeck, 189 Minn. 224, 248 N.W. 719; 4 Am.Jur. 49, sec. 70, note 20; 46 A.L.R. 809; Sec. 11766, Revised Codes.

Defendants argue that because plaintiff failed to prove that a magistrate was available at Roundup on April 3rd, before whom the plaintiff might have been taken, there is no proof of unnecessary delay and plaintiff's case thus fails. Each side contends that the duty of proving the availability of a magistrate during that day was upon the other. The condition of the evidence is not such as to enable this court to determine whether or not a magistrate was available at the time and place in question. The evidence tends to prove that defendant made no effort to take plaintiff before a committing officer, and the record is silent as to whether he attempted to ascertain whether any such was available. Plaintiff proved that both a United States Commissioner and a justice of the peace resided and maintained offices at Roundup during the month of April, 1936, but not that either of them was there and available on the day in question.

The rule favored by this court in the former opinion is thus stated in Restatement of the Law of Torts, Ch. 5, sec. 136: "If the actor, having obtained the custody of another by a privileged arrest *** fails to use due diligence to take the other promptly before a proper court *** the actor's misconduct makes him liable to the other only for such harm as is caused thereby and does not make the actor liable for the arrest or for keeping the other in custody prior to the misconduct." The misconduct is the actor's failure to use due diligence to take the person in custody before a proper court. We suggest that in order to assist the court and the jury definite evidence on this question should have been produced by the party to be benefited thereby. We feel that the trial court, on the basis of the evidence before it, might justifiably have inferred that neither defendant Tait nor the postal inspectors intended to take plaintiff before a committing officer. Their actions and omissions support such inference. Their decision, after communicating with an assistant United States Attorney, to take plaintiff to Great Falls, coupled with their failure to make any effort to locate a magistrate, either at Roundup or en route, indicate a lack of such intention and a lack of due diligence in this regard. The condition of the evidence presented a question of fact as to due diligence, and consequently of false imprisonment by defendant Tait, properly submitted to the jury. The plaintiff proved a prima facie case of false imprisonment, after which the question of justification therefor was one of fact. Consequently the trial court was not in error in denying defendants' motions for non-suit and directed verdict.

Similarly we think, and so hold that the question of whether the detention, and consequently the false imprisonment, of Cline, was accomplished by the defendant Tait, was one of fact. The evidence of the actions of Tait and of the Postal Inspectors Cooney and Mellish was, perhaps, conflicting to some extent, but sufficient to raise a question of fact properly submitted to the jury for determination.

The former opinion herein narrowed the issues and established the law of the case. At page 485 of the reported decision in 113 Mont., at page 94 of 129 P.2d, it was held: "Giving effect to the preponderance of the evidence, the custody of Tait ceased some time between 11:30 a. m. and 1:00 p. m., when the start was made to Great Falls; and giving the fullest effect to plaintiff's testimony it ended at the latest at about 5:30 that afternoon, when the sheriff of Cascade county received plaintiff at the jail at Great Falls. Since the alleged false imprisonment for which the defendant Tait was responsible did not in any event begin under the evidence or as a matter of law until 9:00 on the morning of the same day, it continued not over two and a half to four hours according to the great preponderance of the evidence, and not over eight and one-half hours according to plaintiff's testimony. The defendants are not liable for the detention during the trip of four and one-half to six hours, if the federal officers then had plaintiff in custody, and obviously in any event they cannot be liable for the much longer imprisonment of twenty and one-half hours in the Cascade county jail between the time of his detention there and his presentation before a magistrate."

Defendants contend that under the ruling quoted the trial court erred in admitting evidence of happenings concerning the detention of plaintiff subsequent to the arrival at the Great Falls jail. But this ruling was based upon the law of the case applied to the first trial as established by the application of instructions, given without objection, to the evidence. Thus at page 482 of the reported opinion in 113 Mont., at page 95 of 129 P.2d, it is said: "The issue was further narrowed by several instructions given without objection that *** the defendants 'are liable to this plaintiff for the neglect, default or misconduct, if any, in office, during the period from April 3rd at 2:30 a. m., 1936, to 2 p. m. on April 4th, 1936, of said sheriff or any deputy sheriff, under sheriff, or jailor, appointed or employed by said Ralph Tait, as sheriff for such sum as will compensate plaintiff for such detriment, if any, proximately caused thereby ***."' We think, on the first trial, the district court misconstrued the law in restricting the period of defendants' liability to any hour short of the time plaintiff was taken before a committing officer. However that instruction embodied the trial court's theory, concurred in by the parties, and became a part of the law of the case, under which the holding in our former opinion was correct in restricting defendants' liability to the period of time therein...