Diers v. Mallon

• Decision Date: 15 October 1895
• Docket Number: 5815
• Citation: 64 N.W. 722,46 Neb. 121
• Parties: HERMAN DIERS v. JAMES P. MALLON ET AL
• Court: Nebraska Supreme Court

64 N.W. 722

46 Neb. 121

HERMAN DIERS v. JAMES P. MALLON ET AL

No. 5815

Supreme Court of Nebraska

October 15, 1895

ERROR from the district court of Dodge county. Tried below before MARSHALL, J.

AFFIRMED.

C Hollenbeck and N. H. Bell, for plaintiff in error:

The sheriff is liable for the use of excessive force or violence whether inflicted wantonly or otherwise. (Krug v Ward, 77 Ill. 603; Blythe v. Tompkins, 2 Abb. Pr. [N. Y.], 468; Parsons v. Harper, 16 Gratt. [Va.], 64; Foxhall v. Barnett, 22 Eng. L. Eq., 179.)

Plaintiff's character is in issue, and if known to defendant, may be proved to show a want of probable cause. (Israel v Brooks, 23 Ill. 575; Hirsch v. Feeney, 83 Ill. 548; McIntire v. Levering, 148 Mass. 546.)

W. H. Munger and Frick & Dolezal, contra, cited: Rohan v. Sawin, 5 Cush. [Mass.], 281; Doering v. State, 49 Ind. 56; Rafferty v. People, 69 Ill. 111; Pepper v. Mayes, 81 Ky. 674; 7 Am. & Eng. Ency. Law, 675; 2 Thompson, Trials, secs. 1559, 1560; Firestone v. Rice, 38 N.W. [Mich.], 885; Cochran v. Toher, 14 Minn. 385; Fire Association v. Flemming, 3 S.E. [Ga.], 420.

NORVAL, C. J. POST, J., not sitting.

OPINION

The opinion contains a statement of the case.

NORVAL, C. J.

This was an action for false arrest and imprisonment by Herman Diers against James P. Mallon, as principal, E. William and others, as sureties on the official bond of said Mallon, as sheriff of the county of Dodge. There was a verdict for the defendants, a new trial was denied, and judgment was entered upon the verdict. Plaintiff prosecutes error.

The facts in the case, as disclosed by the record before us, are in substance, as follows: On the 10th day of December, 1889, one Carlos F. Pulsifer was murdered near the village of Crowell, in Dodge county. A day or two later the defendant sheriff arrested and held in his custody in the jail of said county, Charles Shepherd and Christian Furst upon the charge of having committed said murder. During said imprisonment, and on the 13th day of said month of December, the sheriff was present at a conversation had between said Shepherd and the attorney of the latter, T. M. Franse, Esq., in which the former stated to the latter, in substance and effect, that the plaintiff Diers had hired him, Shepherd, to kill and murder said Pulsifer, which statement said Shepherd reiterated in the presence and hearing of the officer; that at the same time Mr. Franse said he was not surprised, or words to that effect; that he knew that some one was behind it, and further, Pulsifer had stated during his lifetime that if he was ever murdered it would be by Diers; that Mr. Franse also stated that Diers, the plaintiff, was a bad man, by which the sheriff understood that plaintiff was a vicious man, and one difficult to handle. On the 14th day of December Mr. Mallon took the train for Norfolk, and while going he had a conversation with Judge Crawford, of West Point, with whom he was acquainted, regarding the murder, and of whom he made inquiry in regard to the reported statement above referred to claimed to have been made by Pulsifer in his lifetime, and Judge Crawford informed the sheriff that Mr. Romberg had stated in West Point that Pulsifer had made the statement, "if he was killed, that Diers would be the one that would murder him;" that the judge also informed him that years before there were a number of incendiary fires at West Point, and that Diers was strongly suspicioned as being the perpetrator of the crimes; that it was getting pretty hot for Diers, and an attorney was consulted, who advised Diers to enlist in the army to prevent his being prosecuted, and he thereupon did so. On the information thus received from Shepherd, Franse, and Crawford, the defendant Mallon, on returning home from Norfolk, on Sunday, December 15, without any warrant, arrested Diers on the train for being implicated in the murder of Pulsifer; that plaintiff, upon being told that he was charged with murder, inquired of the sheriff, "Is it murder, or knowing of murder?" After the arrest of Diers he was handcuffed and in that condition brought to Fremont on the cars, and from the depot he was taken in a carriage to the jail, where he was placed and confined in one of the bedrooms in the living apartment of the jail until December 19. Within an hour after reaching Fremont, which was on Sunday, the sheriff went to Mr. Loomis, the county attorney, told him of the arrest, detailed the circumstances to him, and asked that a complaint at once be filed. Mr. Loomis agreed to do so. The next morning, and several times during Monday, the sheriff saw the county attorney about it, and on Tuesday, December 17, a complaint was duly filed with the county judge charging the plaintiff with murder, upon which a warrant was issued, and by agreement of the parties the hearing was postponed until the 19th day of December, on which day an examination was had upon the complaint, which resulted in Diers being discharged by the county judge. It is further disclosed by the testimony adduced on the trial of this cause that the examination before the county judge was not had at an earlier date owing to the fact that the witnesses lived at so great a distance from Fremont that their attendance could not sooner be obtained; that the sheriff, at the time of the making of the arrest, believed to be true the information received from the different sources relating to Diers being implicated in the murder, and that Mr. Mallon in arresting and detaining Diers acted in the utmost good faith.

The ninth assignment of error, which is the first one discussed in the brief of counsel for plaintiff, is based upon the holding by the court as a matter of law that Mallon had probable cause for making the arrest and in withholding that question from the jury. The point is raised by the fourth instruction given, which reads as follows:

"4. The jury are instructed the evidence in this case shows that the defendant Mallon, at the time he made the arrest complained of, had reasonable and probable cause to suspect that the plaintiff was guilty of procuring the alleged murder to be committed, although as a matter of fact the plaintiff was innocent of that charge. The only questions then left for the jury to determine is: First--Did the defendant Mallon, in keeping the plaintiff in custody, use more force and violence than was reasonably necessary to safely keep and retain him in custody? In other words, is the defendant Mallon guilty of an assault and battery upon the person of the plaintiff Diers? Second--What, if any, damages has the plaintiff suffered by reason of such assault and battery?"

That Pulsifer was murdered is not questioned. The plaintiff was arrested for being implicated in the crime, by the defendant Mallon, without any warrant therefor having been issued. The authority of a sheriff, constable, or peace officer, in the absence of any express statutory provision to arrest without process upon reasonable suspicion one who is charged with the commission of a felony, and detain him for a reasonable time until a warrant can be procured is most fully established by the adjudicated cases. (Rohan v. Sawin, 5 Cush. 281; Wade v. Chaffee, 8 R.I. 224; Beckwith v Philby, 6 Barn. & Cress. [Eng.] 635; Doering v. State, 49 Ind. 56; Davis v. Russell, 5 Bing. [Eng.] 354; Holley v. Mix, 3 Wend. 350; Eanes v. State, 25 Tenn. 53, 6 Hum. 53; Burns v. Erben, 40 N.Y. 463; Firestone v. Rice, 71 Mich. 377, 38 N.W. 885; Filer v. Smith, 96 Mich. 347, 55 N.W. 999; Marsh v. Smith, 49 Ill. 396; Shanley v. Wells, 71 Ill. 78; Simmerman v. State, 16 Neb. 615; 7 Am. & Eng. Ency. Law, 675, 21 N.W. 387, and cases cited; Cooley, Torts [2d ed.], 202.) Judge Cooley, in his valuable treatise on Torts, after discussing the liability of a private person for arresting one on suspicion of crime, observes: "A peace officer may properly be treated with more indulgence, because he is specially charged with a duty in the enforcement of the laws. If by him an arrest is made on reasonable grounds of belief he will be excused, even though it appear afterwards that in fact no felony had been committed." The reason of the rule is stated by Dewey, J., in Rohan v. Sawin, supra, in the following apt language: "It has been sometimes contended that an arrest of this character, without a warrant, was a violation of the great fundamental principles of our national and state constitutions forbidding unreasonable searches and arrests, except by warrant founded upon a complaint made under oath. Those provisions, doubtless, had another and different purpose, being in restraint of general warrants to make searches, and requiring warrants to issue only upon complaint made under oath. They do not conflict with the authority of constables or other peace officers, or private persons under proper limitations, to arrest without warrant those who have committed felonies. The public safety and the due apprehension of criminals charged with heinous offenses imperiously require that such arrests be made without warrant by officers of the law. As to the right appertaining to private individuals to arrest without a warrant, it is a much more restricted authority, and is confined to cases of the actual guilt of the party arrested, and the arrest can only be justified by proving such guilt. But as to constables, and other peace officers, acting officially, the law clothes them with greater authority [than private persons], and they are held to be justified, if they act, in making the arrest, upon probable and reasonable grounds for believing the party guilty of a felony; and this is all that is necessary for them to show in order to sustain a justification of an arrest for the purpose of detaining the party, to await further proceedings under...