Elinora Clark v. J. A. Kelly

• Decision Date: 18 May 1926
• Docket Number: (No. 5561)
• Citation: 101 W.Va. 650
• Parties: Elinora Clark v. J. A. Kelly
• Court: West Virginia Supreme Court

101 W.Va. 650

Elinora Clark

v.J. A. Kelly

(No. 5561)

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1926.

Decided May 18, 1926.

1. Appeal and Error Where First Bill of Exceptions Was Certificate of Evidence, and Second and Third Were Exceptions to Rulings of Court Not Requiring Special Bills of Exceptions, an Order of Court Purporting to File Them Calling Only for "Her Bill of Exceptions," and Only Ground for Motion to Set Aside Verdict Was That it Was Contrary to Law and Evidence, Appellate Court May Con-strue Order so as to Refer to Bill of Exceptions Covering Evidence Adduced on Trial (Code, c. 131, § 5).

Where three bills of exceptions to rulings of the trial court were signed by the trial judge, No. 1 being a certificate of the evidence, and Nos. 2 and 3 exceptions to rulings of the court not requiring special bills of exceptions, but preserved by orders of record, but the order of the court purporting to file the same calls only for "her bill of exceptions," and the record shows that the only ground of the motion to set aside the verdict of the jury was that the same was contrary to the law and the evidence, the appellate court may by construction of the order refer the one called for in the order to the bill of exceptions which covers the evidence adduced on the trial, it being the one which with reasonable certainty was manifestly intended by the order of identification. (p. 653.)

(Appeal and Error, 4 C. J. § 2748.)

2. Same Where Only Ground Assigned in Motion to Set Aside Verdict Was That it Was Contrary to Law and Evidence, Appellate Court Will Not on Writ of Error Consider Any Grounds for New Trial Awarded Not Assigned in Court Below.

Where the only ground assigned in a motion to set aside the verdict of a jury was that it was contrary to the law and the evidence, the appellate court will not on writ of error consider any grounds for the new trial awarded not assigned in the court below. (p. 655.)

(Appeal and Error, 3 C. J. § 768.)

3. False Imprisonment Imprisonment Without Mittimus or Lawful Process is Illegal, Rendering Jailer Liable in Damages.

The imprisonment of another by a jailer without a mittimus or other lawful process is illegal, and renders such officer liable in damages to the one injured thereby. (p. 656.)

(False Imprisonment, 25 C. J. § 29.)

4. Officers Where Duties Imposed on Public Officer Are Posi-tive and Ministerial Only and Involve no Discretion, He is Liable to Any One Injured by Nonperformance or Negligent Performance, Without Regard to His Motive or Any Question Involving Corruption in Office; Whether Public Officer Has Properly Discharged Duties of Ministerial Nature is Generally Question of Fact for Jury.

Where the duties imposed upon a public officer are positive and ministerial only and involve no discretion on his part, he is liable to anyone injured by his nonperformance or his negligent performance thereof, and this without regard to his motive or any question involving corruption in office; and whether he has properly discharged his duties in the premises is generally a question of fact for the jury on the evidence adduced before them. (p. 657.)

(Officers, 29 Cyc. p. 1442.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Kanawha County.

Action by Elinora Clark against J. A. Kelly for false imprisonment. Judgment setting aside a verdict for plaintiff and awarding defendant a new trial, and plaintiff brings error.

Judgment reversed; verdict reinstated.

Beverly Broun and Lon H. Kelly, for plaintiff in error.

H. D. Runnmel, for defendant in error,

Miller, Judge:

Plaintiff, a citizen and resident of Virginia, sued defendant, jailer of the City of Charleston, "West Virginia, for alleged personal wrongs and injuries inflicted upon her by him. On the trial the jury returned a verdict for plaintiff for four hundred dollars, which, on defendant's motion, the circuit court set aside and awarded him a new trial, to which judgment we awarded the present writ of error.

The issues tried were presented by defendant's plea of not guilty. The declaration is in two counts. The first alleges plaintiff's arrest, while she was visiting at the home of her son in the City of Charleston, without any authority or lawful warrant, and for no cause against her, by certain officers, who took her by force and against her will into their custody and carried her to the station house or jail of said city, where without any authority and without any warrant of commitment, or commitment of any sort, defendant forcibly and against her will took her into his custody, and maliciously intending to wrong and injure her, at or about the hour of 9:00 o'clock P. M., placed her in a compartment or cell of said jail or station house, and forcibly and without authority detained and imprisoned her during all of the night following, and until the following day, December 25th; that the cell was flooded with water to the depth of four inches, in which she was compelled to stand or walk during all the night, and by reason whereof she was greatly humiliated and embarrassed and suffered great physical and mental anguish, and whereby she has been sick and ill, her health seriously impaired, and she has been compelled to expend large sums of money in being treated and in endeavoring to be cured, and by reason of the premises has been hindered from following and transacting her lawful business, and has been otherwise injured and damaged to the amount of $10,000.00.

The second count contains substantially the same averments, but in addition alleges that as such jailer it was defendant's duty to keep the said jail or station house clean and properly aired and in such condition that one confined therein should be comfortably situated, and to furnish every prisoner or person confined therein with a bed and bedding cleanly and sufficient and properly warmed; that there was at the time of her imprisonment a police matron, whose duty it was to take and have entire care and control of women under arrest, as defendant well knew and that it was his duty to have summoned said matron immediately upon taking plaintiff to said jail, that she might attend to plaintiff's care and comfort, but that not regarding his said duty, defendant without any authority therefor, but contriving to injure her, forcibly and against her will confined her in said cell or compartment, which was wholly unfit for occupancy and which was uncleanly and unhealthy, and upon the floor of which was water to a great depth, and which cell or compartment, as defendant well knew, did not contain any bed or bed clothing cleanly and sufficient, and where plaintiff was compelled to remain for the whole of the night of December 24th, the defendant well knowing that there were other cells or compartments on other floors of said jail or station house which were in good and healthful condition, and in which were contained cleanly and sufficient beds and bedding, where plaintiff could have been kept without physical discomfort, but that he declined and refused, though requested by plaintiff, to secure or call said matron, who if called would have ministered to plaintiff's necessities and detained her in a cell or compartment in proper condition. And plaintiff also averred that she was then and always had been a woman of refinement and good repute and had offended against no ordinance or law, as defendant well knew, but that nevertheless he had wrongfully and maliciously caused her to be imprisoned during all the night aforesaid with three vile and wicked women, who were by him allowed during the whole of the night and in the presence of this plaintiff continually to engage and indulge in vile and filthy language and otherwise to annoy, humiliate and embarrass her, and during all the night to occupy said cell or compartment in its unbearable condition and to suffer intense pain therefrom and to be therein humiliated and embarrassed, by reason whereof, etc., as in the first count alleged.

The first question to be disposed of is the objection interposed by defendant's counsel to any consideration of questions involving the merits of the case, for want of any certain bill of exceptions certifying the evidence adduced on the trial. Three bills of exceptions are copied into the record, all properly signed and sealed by the trial judge; but it is contended that in as much as the order entered by the court mentions only "her bill of exceptions", no one of those so certified rather than another can be identified as the one intended and actually certified.

Bill of exceptions No. 1 is a certificate of the evidence taken on the trial, and is the first copied into the record. No. 2 simply shows plaintiff's exceptions to the action of the court in setting aside the verdict and awarding defendant a new trial, which was fully shown by an order entered on July 18, 1925, and requiring no other bill of exceptions. No. 3 simply shows a motion by plaintiff to enter judgment for her on the verdict, and an exception to the ruling of the trial court denying said motion. Manifestly, as all three bills were signed by the trial judge on the same day and copied into the record, all were referred to as "her bill of exceptions" in the order entered on the same day they were signed. Certainly the certificate of evidence should be so included, for the plaintiff's rights as to the matters covered by Nos. 2 and 3 were fully protected without bills of exceptions by the prior orders of the court. The bills of exceptions were tendered and signed on a court day, not by the judge in vacation. The omission to specifically identify all three of them in the order was undoubtedly a clerical omission, for the clerk in making up the record says that "Bills of Exceptions Nos. 1, 2 and 3 referred to in the foregoing order are in the words and figures following, to-wit: '' and then copies all three into the record, and first of all the certificate of the...