Gibney v. Lewis

• Decision Date: 01 December 1896
• Citation: Gibney v. Lewis, 68 Conn. 392, 36 A. 799 (Conn. 1896)
• Court: Connecticut Supreme Court
• Parties: GIBNEY v. LEWIS.

36 A. 799

68 Conn. 392

GIBNEY

v. LEWIS.

Supreme Court of Errors of Connecticut.

Dec. 1, 1896.

Appeal from superior court, New Haven county; Shumway, Judge.

Action by Mary Gibney against Charles D. Lewis for false return made by defendant of service of a subpcena on plaintiff, thereby causing her arrest on a capias. From a judgment entered on a verdict in favor of plaintiff, defendant appeals, and also moves for a new trial for verdict against evidence. Motion denied. Judgment reversed.

Frank S. Fay, for appellant.

Richard Gleeson, for appellee.

TORRANCE, J. This case comes before this court by a motion for a verdict against evidence, under chapter 51 of the Public Acts of 1893, and also by way of appeal for the revision of certain claimed errors set forth in the reasons of appeal. One of these errors relates to the charge of the court upon the question of damages, and as we are of opinion, for the reasons hereinafter given, that for this error a new trial must be granted, it will not be necessary to consider the questions raised upon the motion, nor to notice all the errors assigned upon the appeal.

The facts bearing upon the questions to be considered are, in substance, the following: The complaint charges that the defendant, as a police officer, signed a false return upon a warrant to which was attached a subpoena, therein alleging that he had duly served said subpoena on the plaintiff, when in fact no such service had been made; that, in consequence of said false return, a capias had been duly issued for the arrest of the plaintiff for failure to obey said subpoena; that she had been arrested upon said capias, taken to the police station, and detained there for some time; and that, by reason of said arrest, she had been deprived of her liberty for a time, and had endured much mental suffering. On the trial of the case it was admitted that the plaintiff had been arrested on a capias issued by the police court of the city of Meriden, for failure to appear as a witness in a certain case in said court, and was obliged to go to police headquarters to get discharged, and was there detained about an hour. It was also admitted that she had not been summoned as a witness in said case previous to her arrest on the capias. The plaintiff offered evidence to prove, and claimed to have proved, that her arrest upon the capias was caused by reason of a false return signed by the defendant, upon a warrant issued for the arrest of one Ryan, which return, so far as it relates to the service of the subpoena attached to said warrant, reads as follows: "And I duly served the within subpoena by reading the same to the within-named witnesses, and to their acceptance." This return the plaintiff laid in evidence. The plaintiff's name appeared in the subpoena. The defendant offered evidence to prove, and claimed to have proved, in substance, that he, in company with another police officer, had arrested Ryan on said warrant; that after the arrest, in obedience to the direction of his superior officer, the defendant signed the return laid in evidence, in blank, and handed the warrant back to his superior, stating to him that the return was incomplete, and that no witnesses had been summoned; that the defendant never saw the subpoena attached to said warrant, and it was never given him to serve; that he did not know that the plaintiff's name was in the subpoena till long after her arrest on the capias; that he did not return said warrant to court; and that he knew nothing of the capias till after it was issued, and had nothing whatever to do with the issuing of it. The plaintiff offered no evidence to contradict this testimony.

The complaint does not allege that the defendant, in doing what it says he did, intended to injure the plaintiff, or that he acted maliciously, or from improper motives, or that his negligence...