Grimes v. Greenblatt

• Decision Date: 07 March 1910
• Citation: 47 Colo. 495,107 P. 1111
• Parties: GRIMES v. GREENBLATT.
• Court: Colorado Supreme Court

107 P. 1111

47 Colo. 495

GRIMES v. GREENBLATT.

Supreme Court of Colorado

March 7, 1910

Rehearing Denied April 4, 1910.

Appeal from District Court, City and County of Denver; Booth M Malone, Judge.

Action by Jacob Greenblatt against Ben Grimes. From a judgment for plaintiff, defendant appeals. Affirmed.

George S. Redd, George Stidger, and Harry S Silverstein, for appellant.

Talbot Denison & Wadley, for appellee.

WHITE J.

This action was brought by appellee against appellant to recover damages. The complaint alleges that plaintiff was, and for many years had been, a resident of the city of Denver, and engaged in the mercantile business; that he had demeaned himself as an upright and law-abiding citizen, and had obtained, possessed, and deserved the good opinion and credit of the community; that on or about the 7th day of March the defendant, contriving and maliciously intending to injure the plaintiff in his good name and credit, and to bring him into public scandal and disrepute, unlawfully and wrongfully caused his arrest upon a charge of having committed the crime of burglary and larceny, and thereafter on the same day made and filed a false complaint before a justice of the peace, wherein he charged plaintiff with having committed said crimes by breaking into a certain house, and there stealing, taking, and carrying away certain property of defendant; and then and there procured a warrant from said justice for the arrest and detention of plaintiff upon said charge; that said plaintiff was arrested, detained, and imprisoned thereon, and confined in the city jail for the period of about 10 hours; that the defendant acted maliciously and without reasonable or probable cause; that said proceedings before the justice of the peace terminated in the discharge of plaintiff; that the plaintiff was damaged in the sum of $10,000, for which judgment was prayed. The complaint was in no wise questioned, and the only pleading upon the part of defendant was a general denial. Upon the issues thus made, the cause was tried to a jury, resulting in a verdict for plaintiff, who is appellee here, and a finding that the defendant was guilty of actual malice and fraud. The defendant thereupon filed a motion for a new trial, which being overruled, judgment was entered on the verdict, together with an award of a body execution against the defendant in accordance with the prayer of the complaint and the finding of the jury. From that judgment, the defendant prosecutes this appeal.

The parties to the suit are wholesale junk dealers, plaintiff having been engaged in the business in Denver for 11 years, and for about 5 or 6 months of that time in partnership with defendant. The partnership was dissolved, because of differences having arisen between them, about 10 years before the commencement of this suit. The parties had been on bad terms since the dissolution of the partnership, and for 8 or 9 years had not spoken to each other. Strong enmity existed between them, and defendant had threatened 'to get even' with the plaintiff. Some 10 days before plaintiff was arrested, defendant's place of business was burglarized and certain copper wire taken therefrom. On the day of plaintiff's arrest, defendant in his own conveyance, with certain city detectives, visited several junk shops for the purpose of ascertaining whether the copper wire taken from defendant's premises could be found. About 2 p. m. plaintiff's shop was visited and the latter informed of the burglary and theft; plaintiff was unable to say whether he had purchased any copper wire recently, but invited a search through his premises, assisting therein. In one of the bins a sack containing some copper wire was found, which defendant claimed was a part of the stolen wire. Plaintiff, upon weighing the wire and inspecting his books, advised that he had purchased it on a certain date from one Samuelson, whose occupation and residence were given. Plaintiff was instructed by the detectives to retain the wire, and promised so to do; thereafter the defendant held a conversation with the officers apart from the plaintiff--the nature of which is not disclosed--whereupon the officers returned and undertook to take the wire, to which plaintiff objected, claiming he did not know that the wire belonged to defendant, and that he would hold the wire until its identity was established. The officers then stated that if they could not take the wire, they would take the plaintiff, and placed him under arrest and conveyed him to the city hall. Defendant was upon the sidewalk as the officers went by with plaintiff, and said, 'Why don't you take his partner too?' Upon the arrival of the plaintiff, in the custody of the officers, at the city hall, defendant was in the office of the chief of police before whom plaintiff was taken. It was then stated by one of the officers that the wire was found in plaintiff's place of business and the latter had refused to give it up; thereupon plaintiff stated that he was responsible, would not run away, and did not propose to give up the wire as he did not know it belonged to the defendant. Defendant thereupon said: 'He is a G05r d05r liar. He does know it is my copper wire.' The officers then locked plaintiff in the jail, in the so-called 'bull pen,' a foul and filthy cell in which were hobos and tramps, where he remained until 10 p. m., when he was released on bail. Defendant's brother and an officer went in search of Samuelson, finding him where plaintiff had stated he lived. Samuelson identified the wire as the particular wire he had sold the plaintiff, and accompanied the officer and defendant's brother to, and pointed out, the man of whom he had purchased the wire. The man with whom Samuelson had dealt was taken to police headquarters, and there admitted he had stolen the wire from a coal shed, where he had seen two fellows hiding it. Samuelson also, at the request of the officer, reported at the city hall. Upon the arrival of the latter, the defendant said to him: 'You can go home. We don't need you any more.' After the plaintiff's incarceration in the jail, one of the detectives and the defendant returned to plaintiff's place of business and removed the wire. Defendant said to an employé of plaintiff who was endeavoring to get the plaintiff released, 'What do you care? Let him stay in there;' and to another employé who had said to defendant, 'It is a shame to put a man in jail without making a complaint,' 'Never mind about that.' Thereafter, and with knowledge of all the facts as stated above, the defendant swore to, and filed, the complaint charging the plaintiff with burglary and the larceny of said copper wire. The next day this complaint was dismissed by the district attorney, and two days thereafter the defendant swore to another complaint charging plaintiff with receiving stolen goods. Upon this charge he was tried and acquitted. Upon many essential points the evidence was conflicting, and the jury, having found for the plaintiff, the facts necessary to support the verdict, as shown by the testimony stated above, must be considered established.

Appellant contends that the complaint charges malicious prosecution only, and not false imprisonment, and that evidence admitted over his objections and exceptions as to what occurred prior to the filing of the criminal complaint was improper. He argues that, if defendant advised, counseled, or aided in the arrest and imprisonment of plaintiff without a warrant and before a criminal complaint was filed, plaintiff, if he desired to hold defendant therefor, should have set out in his complaint a cause of action for false arrest and imprisonment, and joined it with his action of malicious prosecution. No doubt the course suggested by appellant would have been the better and proper practice, and if the matter had been properly presented to the trial court, would probably have been imperative. Notwithstanding this rule, the complaint is nevertheless good, under the circumstances of this case, and authorized the plaintiff to prove his cause of action for false imprisonment, as well as for malicious prosecution. Under section 1, Mills' Ann. Code, but one form of action is recognized. The pleader is required by section 49 of said Code to set forth 'a statement of the facts constituting the cause of action in ordinary and concise language without unnecessary repetition.' The facts alleged constitute false imprisonment, and likewise malicious prosecution. Whether the action is called 'an action for false imprisonment' or for 'malicious prosecution' is of no consequence. We are not concerned with the names which counsel assign to actions. If two causes of action were improperly united, and defendant desired to take advantage of that fact, he should have done so by an appropriate pleading. Having failed in that respect he cannot now be heard to complain that the complaint wove together two causes of action in one, when the proof of facts shows him liable for both. French v. Deane, 19 Colo. 504, 506, 36 P. 609, 24 L.R.A. 387; Possell v. Smith, 39 Colo. 127, 130, 88 P. 1064; Hattersley v. Burrows, 4 Colo.App. 538, 36 P. 889. Appellant further argues that as he 'was not shown to have caused the plaintiff's arrest or imprisonment' he should not be held liable for any matters occurring prior to the filing of the criminal complaint, and that instructions requested so advising the jury should have been given.

We are persuaded appellant is in error in his assertion that he 'was not shown to have caused the plaintiff's arrest or imprisonment.' There was ample evidence to show his participation in such acts. The record is pregnant with facts from which the jury could properly draw such conclusions. It is not necessary that his...