Dougherty v. Snyder
| Decision Date | 05 January 1903 |
| Citation | 71 S.W. 463,97 Mo.App. 495 |
| Parties | JOHN W. DOUGHERTY, Respondent, v. ABRAHAM C. SNYDER, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Nodaway Circuit Court.--Hon. Gallatin Craig, Judge.
Reversed and remanded.
W. C Ellison and E. A. Vinsonhaler for appellant.
(1) Defendant Snyder and his partner Wilson had a right, under the allegations in their affidavit, to apply to the probate judge for the apprehension of Dougherty. If he was furiously mad, and threatening to kill Snyder and destroy the property of both, then clearly it was within the power of the probate judge to "cause such insane person to be apprehended and employ any person to confine him or her in some suitable place until the probate court shall make further orders therein." Revised Statutes 1899, sec. 3695. (2) No bonds in such a case can be taken, and when, as here, plaintiff asked for a continuance and was placed in charge of his father-in-law, the judge acted judicially and was only doing what the statute plainly required. So in regard to Snyder's complaint to the sheriff. It was no more than a request of the officer to keep in his custody the plaintiff Dougherty; and such request resulted in nothing further than the officer was bound to do under his warrant. Every step was under the warrant--no restraint except such as was required by it was imposed. (3) Even malicious motives, or want of probable cause, do not give a party arrested an action for false imprisonment. (4) The warrant is a complete protection in this case and plaintiff's instruction No. 3 is clearly error. (5) The court is referred to rulings on the evidence offered as to insanity of plaintiff and his threat to kill Snyder. To exclude this evidence and then submit the issue to the jury is so clearly error as to require no citations.
C. A Anthony for respondent.
(1) The defendant seeks to justify under section 3695. "It is elementary law that one who would justify himself under a statute must pursue the statute." Lock v. Dean, 11 Am. R. 327; McCasky v. Garrett, 91 Mo.App. 354; Monson v. Rouse, 86 Mo.App. 101; Cox v. Osage County, 103 Mo. 390. Indeed, if this were not so, the statute would be unconstitutional. Smith v. People, 65 Ill. 375, 379. (2) Appellant seems to argue that if a person in any kind of a case has any kind of a warrant issued, he must be prosecuted for malicious prosecution and harshly refers to Finley v. Refrigerator Co., 99 Mo 559. "It makes no difference whether the restraint of the person is caused without process, or under color of process wholly illegal." Ahern v. Collins, 39 Mo. 150; Fellows v. Goodman, 49 Mo. 63; Monson v. Rouse, 86 Mo.App. 97; McCaskey v. Garrett, 91 Mo.App. 354; Boeger v. Langenburg, 97 Mo. 396; Cooley on Torts (1 Ed.), p. 177. (3) The warrant not authorized by law, the defendant not only had affidavit filed with Judge Tate but demanded the warrant, directed the arrest, complained that the officer did wrong in letting Dougherty go with Mr. Cramer, had the sheriff go to Cramer's, keep surveillance over Dougherty through the night, objected to his release next day, employed an attorney to conduct a trial unknown to law--certainly these facts not only make Snyder liable but show a spirit of persecution. Knowles v. Bullene, 71 Mo.App. 341; Bissell v. Gold, 19 Am. 484, 490; McCaskey v. Garrett, 91 Mo.App. 354; Floyd v. State, 12 Ark. 43; 54 Am. Decisions 252, note page 259; Veneman v. Jones, 118 Ind. 41; 10 Am. St. 100; Monson v. Rouse, 86 Mo.App. 101, 103; Bonesteel v. Bonesteel, 28 Wis. 253; Schell v. Leland, 45 Mo. 294; Wise v. Loring, 54 Mo.App. 264; Bath v. Metcalf, 145 Mo.App. 214; 1 Am. State Rep. 455. (4) To establish his case plaintiff is only required to show the imprisonment, and that done, it devolves upon the defendant to prove that he was justified. Floyd v. State, 54 Am. Dec. 252. (5) It certainly can not be the law of Missouri that any man may treat a person whom he claims "furiously mad" as a criminal, cause his arrest at his place of business, drag him from his home and family, expose and humiliate him and not be liable. And the statute certainly never intended to give the power to any one to treat him as a criminal. The proceedings in probate court to have him adjudged a lunatic and incapable of managing his affairs are in their character civil proceedings. The notice takes place of a summons. Crow v. Meyersink, 88 Mo. 411; State v. Baird, 47 Mo. 301-304; Kiehns v. Wessel, 53 Mo.App. 669; Rafael v. Vervelft, 2 Wm. Blackstone 987; Smith v. People, 65 Ill. 375, 378.
This is an action which was brought to recover damages for a wrongful arrest and detention. The petition was in two counts. At the trial there was a finding by the jury on the second for plaintiff, but none whatever on the first. This under our practice, was in effect a finding for the defendant on the latter; but as the plaintiff has made no complaint as to that and has not appealed that count, and the proceedings relating to the trial on it are not now in any way before us for review, it need not be further noticed. In the second it was alleged that the defendant unlawfully and wrongfully arrested and caused the arrest and detention of the plaintiff, etc.
The answer alleged that defendant, in good faith filed before M. G. Tate, the judge of the probate court, an information stating that plaintiff was so far disordered in his mind as to endanger his own person and property and the person and property of others. "That defendant is informed and believes that upon said affidavit said judge of the probate court did issue a warrant for the apprehension of said plaintiff upon said grounds so alleged and that the imprisonment complained of in the petition was for the acts of the officer, sheriff and his deputies, under said warrant and that defendant in no other way interfered therein."
It appears from the very meagre abstract of the record presented that the plaintiff had been confined in a lunatic asylum for some form of insanity and had so far recovered that he had been discharged and later on had engaged in a mercantile business. The defendant and another filed an information before the probate judge of the county stating that the plaintiff herein was a resident of the county, having a large amount of property therein, and was and for some time past had been so far disordered in his mind as to endanger his own person and the person and property of others. It was also further stated that at a certain time and place the said plaintiff had threatened to take the life of the defendant and to destroy his property.
It further appears that the probate judge before whom the said information was filed, being satisfied there was good cause for the exercise of his jurisdiction, issued a warrant for the apprehension and restraint of plaintiff until the alleged information could be inquired into by a jury. The said plaintiff was immediately apprehended under the warrant by the sheriff and placed in the care and custody of his father-in-law where he remained until there was an inquiry by a jury in the said probate court touching the truth of the allegations made by the defendant in said information so filed before the judge of said court. The jury, it seems, after hearing the evidence produced before it, were unable to agree. The said plaintiff upon the motion of the defendant was discharged. It further appears that while the plaintiff was in charge of the sheriff under the warrant, that defendant suggested to him that he ought not to let him (plaintiff) go out of his charge, and that in his opinion it would be necessary to put handcuffs on him.
During the progress of this case the plaintiff, who was a witness in his own behalf, testified that his feelings towards the defendant were none the best. The defendant inquired of him whether or not he had not at a certain time (two days before the information was filed) and place, in the presence of a certain person--naming him--threatened the life of the defendant? On objection of plaintiff's counsel he was not permitted to answer. It seems to us that this was a proper question and that the plaintiff should have been allowed to answer it. Evidence of the kind called for by defendant's question tended to show the defendant's good faith in filing the information, and for that reason we think it was admissible.
The information and the issue of the writ for the apprehension of plaintiff was authorized by sections 3650, 3651, 3694, 3695, Revised Statutes 1899. The plaintiff's cause of action is based on the illegality of his arrest and detention, and since it clearly appears from the evidence that the arrest and detention was made in due course...
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