Davis v. Johnson

• Decision Date: 01 May 1900
• Docket Number: 353.
• Citation: 101 F. 952
• Parties: DAVIS v. JOHNSON et al.
• Court: U.S. Court of Appeals — Fourth Circuit

101 F. 952

DAVIS v. JOHNSON et al.

No. 353.

United States Court of Appeals, Fourth Circuit.

May 1, 1900

This is a writ of error to the judgment of the circuit court of the United States for the district of West Virginia, at Charleston. The action is trespass on the case by the plaintiff in error to recover of the defendants in error damages growing out of the following occurrences: The plaintiff in error hired a horse from the defendant in error Ellis, a liveryman, at Ft. Spring, W. Va., to ride horseback to Lewisburg, and in that vicinity, at an agreed price of $1 per day, with an understanding that Davis might purchase the horse at the price of $100, if it suited him, and, in the event of purchase, he was not to be charged for the hire of the horse during the trip; and Davis obligated himself, at least impliedly, to take good care of the animal, and return it to the owner at the expiration of the term of hiring. During the trip the horse's back became sore to such an extent that Davis would not use it; and he hired a conveyance, and drove a portion of the way, leading the disabled animal. The horse was returned on Saturday, the 6th of July, 1895, the trip having taken six days, and was left at Ft. Spring with a brother of Ellis, who was informed that the plaintiff in error had to catch a train hurriedly to Alderson, his headquarters, and that he would return that evening going to Ronceverte, and that if Ellis would be at the depot the amount of the hire would be handed him. That evening before Davis left Alderson, and as he was dressing to catch the train on his return trip to Ronceverte, Ellis, the defendant in error, appeared at Alderson, and called to see him in reference to the horse, and demanded that Davis take the horse under the conditional agreement for sale hereinbefore referred to, because, as he claimed, the horse had been seriously injured, and was not returned to him in good condition, as contemplated in the contract of hire. He refused to accept anything on account of hire, and insisted on Davis paying for the animal, which the latter refused to do, as the horse did not suit him, as he claimed; and he moreover, insisted that he had taken the best care of the horse possible, and that the sore back was caused by the excessively hot weather, and the fact that the horse had been fed on grass, was extra fat, and unaccustomed to saddle use. Being unable to come to an agreement, Ellis and Davis separated, and the latter left on the train for Ronceverte. That night, between 10 and 11 o'clock, Ellis and the defendant in error Chew appeared at Ronceverte with a civil warrant issued by the defendant in error Johnson, and executed the same on the plaintiff in error, requiring him to appear before said Johnson at Ft. Spring, on the 11th day of July, 1895, to answer the complaint of the defendant in error Ellis for the sum of $100, for the recovery of money due by account; and said Chew demanded that Davis acknowledge service of the summons, which upon his failure and refusal to do he was arrested, and for a while held in custody; and after protesting against Chew's authority to make an arrest on a mere civil warrant, and refusing to submit to his authority, Chew presented another warrant, being a criminal warrant, charging Davis with cruelty to animals, sworn out by Ellis before the defendant in error Johnson, and plaintiff in error was taken in custody under this warrant, the defendant in error Ellis and one Vawter, called on by constable Chew assisting in taking physical hold of Davis, according to Davis' statement, which was corroborated by others. Chew insisted that, by order of Johnson, he was to be arrested and brought before him at Ft. Spring, unless service of the civil process was acknowledged. After being held in custody under these circumstances, and counseling with friends, and when about to be taken by Chew and Ellis in a buggy to Ft. Spring the point was made that a justice at Ronceverte could take the bail; and while Davis was being carried under arrest about 1 o'clock Sunday morning, to the residence of a justice of the peace at Ronceverte, he consented to acknowledge service of the civil warrant, to avoid further annoyance, and to secure release from arrest. This being done, he was discharged, and returned to his hotel. Two days later, while at Lewisburg, he was again arrested by Chew under the warrant charging cruelty to animals, and, after being held in custody some time, was taken before a justice of the peace, and allowed to give bail for his appearance before Justice Johnson at Ft. Spring. Upon a hearing before the justice, judgment was given for the plaintiff for $100 and costs in the civil case, and the criminal warrant was dismissed, the defendant agreeing to pay the costs, but under protest, as he insists. The declaration contains three counts, to the first two of which a demurrer was sustained, and upon trial of the case under the third count the court instructed the jury to return a verdict for the defendants, being of the opinion that under that count it was necessary, in order for the plaintiff to recover, that he should prove a conspiracy, which he had failed to do.

John H. Holt and C. C. Watts, for plaintiff in error.

John Osborne, for defendants in error.

Before GOFF and SIMONTON, Circuit Judges, and WADDILL, District Judge.

WADDILL District Judge, after stating the facts as above, .

The assignments of error present for the consideration of the court quite a number of questions, but those specially relied upon involve the correctness of the court's ruling on the demurrer to the declaration, and in instructing a verdict for the defendants as aforesaid. The difficulty in argument between counsel as to the priority of the court's ruling on the demurrer arises from their inability to agree as to whether the first two counts in the declaration are for false imprisonment or malicious prosecution. If the two counts are for malicious prosecution, the fact that the...