Goodwin v. Guild

• Decision Date: 01 March 1895
• Citation: 29 S.W. 721,94 Tenn. 486
• Parties: GOODWIN v. GUILD et al.
• Court: Tennessee Supreme Court

29 S.W. 721

94 Tenn. 486

GOODWIN v. GUILD et al.

Supreme Court of Tennessee.

March 1, 1895

Appeal from circuit court, Davidson county; Nick D. Malone, Special Judge.

Action by J. E. Goodwin against George B. Guild and others for false imprisonment and malicious prosecution. Judgment was rendered against defendant Guild, and he appeals. Reversed.

Smith & Dickinson, Barthell & Keeble, and J. D. Wade, for appellant.

Colyar Williamson & Colyar and J. W. Gaines, for appellee.

WILKES J.

This is an action for false imprisonment and malicious prosecution. It was tried before a special judge in the court below without the intervention of a jury, and a judgment rendered for $1,500,-$1,000 of which was awarded as actual and $500 as exemplary damages,-and defendant has appealed, and assigned many errors, which need not be treated in detail. A short statement of the facts in the case is that plaintiff entered into a contract with the board of public works and affairs to construct a sewer in the city of Nashville. This contract while dated April 14, 1892, appears to have been executed on the part of the board on April 18, 1892, and was in pursuance of a public letting to the lowest responsible bidder had before that date, and about April 2, 1892. The plaintiff secured the contract, and expected and intended to use convict labor in its execution, and there is proof tending to show that this fact was known to the board of public works and affairs at the time the contract was let to the lowest bidder. After the public letting on the 2d of April, the mayor and city council of Nashville, on the 14th day of April, 1892, passed an ordinary making it unlawful for any person to use or employ convict labor on any work to be executed under contract with the city of Nashville, under a penalty of $50 for each violation. Defendant Guild was mayor of Nashville, and, being notified that plaintiff was using convicts upon the work under his contract with the city, on 23d April, 1892, went before the recorder, and procured Mr. Cleary, street overseer, to make the necessary affidavit that plaintiff was violating the city ordinance by working convicts in the city limits under his contract, and thereupon the recorder and judge of the city court, at the suggestion of the said Guild, issued a warrant for plaintiff's arrest, which was given to a member of the police force, who met the plaintiff, read the warrant to him, and cited him to appear before the recorder on the next morning, which he agreed to do. No actual arrest was made by touching the plaintiff or taking him into custody, and no bond for his appearance was required. He did appear, was fined $50, appealed to the circuit court, and was in that court tried and acquitted December, 15, 1892, on the ground that the city ordinance was in contravention of an act of the general assembly, and hence was void, and gave no authority for plaintiff's arrest. Thereupon, November 16, 1893, plaintiff brought this action for damages for false imprisonment and malicious prosecution against the defendant personally and against the members of the board of public works individually and the mayor and city council of Nashville. On demurrer the action as to the mayor and city council was dismissed. The cause was tried, and resulted in the acquittal of the members of the board of public works, and in judgment against defendant Guild, as before stated.

It is conceded that the ordinance of the city under which the mayor proceeded was in contravention of the law, and was therefore void; but at the time these proceedings were taken it had not been so declared by any judicial tribunal, and defendant insists that he acted in perfect good faith in attempting to execute the ordinance as it was passed and stood upon the books of the city, and was actuated by no malice. The circuit judge, in his written opinion, found that defendant was actuated by no feelings of malice. It is said, however, that previous to this time the board of public works had considered this ordinance, and came to the conclusion that it was illegal, and had declined to enforce it, and so notified the mayor, and such is the fact. It is also said that the city attorney had given an opinion adverse to the legality of the ordinance, and that this had been sent by the board to the mayor, along with a record of their action declining to enforce the ordinance. The proof in regard to this opinion is quite indefinite. It appears that such opinion was prepared by J. C. Bradford for the city...