Herlihy v. Donohue

• Decision Date: 10 November 1916
• Docket Number: 3849.
• Citation: 161 P. 164,52 Mont. 601
• Parties: HERLIHY v. DONOHUE ET AL.
• Court: Montana Supreme Court

161 P. 164

52 Mont. 601

HERLIHY v. DONOHUE ET AL.

No. 3849.

Supreme Court of Montana

November 10, 1916

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

Action by Dennis Herlihy against Dan J. Donohue, Wade Gobel, William M. Morse, and others, wherein, on the death of Herlihy Michael Herlihy, as executor of his estate, was substituted as plaintiff. From a judgment for plaintiff, the named defendants appeal. Judgment against defendant Donohue affirmed, and cause remanded, with directions to enter judgment, dismissing the action as against defendants Gobel and Morse.

J. B Poindexter and W. H. Poorman, both of Helena, and Jesse B Roote, of Butte, for appellants.

M. J. Doepker, Edwin M. Lamb, and Maury, Templeman & Davies, all of Butte, for respondent.

HOLLOWAY J.

On September 1, 1914, the Governor of this state issued a proclamation declaring the county of Silver Bow in a state of insurrection. A portion of the organized militia under the command of Maj. Dan J. Donohue, with Wm. Morse and Wade Gobel, subordinate officers, was ordered to the scene of the trouble for the declared purpose of restoring peace and good order and rehabilitating the civil authority in that county. Upon taking command of the troops, Maj. Donohue issued an order, closing saloons and other places where intoxicating liquors were for sale. This order was thereafter modified so as to permit such places to be open for business from 8 a. m. until 7 p. m. daily. On September 19th Maj. Donohue ordered Morse, Gobel, and certain enlisted men to take from the saloon of Dennis Herlihy the stock of liquors therein and destroy the same, and, the order having been executed, this action in trespass was brought to recover actual damages to the amount of the value of the property destroyed, and punitive damages in the sum of $1,000.

The complaint alleges the ownership and value of the property, the trespass and destruction of the property, and that the defendants acted wrongfully and with malice. The answer consists of a general denial and certain affirmative allegations, which set forth the proclamation of the Governor, the original and amended order by the commanding officer, and allege that the plaintiff, Dennis Herlihy, while the amended order was in full force and effect and with knowledge of such order, willfully violated the same by opening his saloon and dispensing intoxicating liquors within the prohibited hours on September 17th; that at the time there was great disorder in Silver Bow county; that the commanding officer--

"had reason to believe and to expect that certain of the insurrectionists in said county, and law-breakers therein, would cause riots to occur, and do violence to both property and human life; that in view of these facts said commanding officer of said military forces believed that it was imperatively necessary to forbid the sale or distribution or giving away of intoxicating liquors later than 7 o'clock in the evening and before 8 o'clock in the morning; and, in order to prevent the plaintiff herein from furnishing liquors to persons within the hours during which persons were forbidden to sell or furnish liquors to others, the said commanding officer, with certain of his subordinate officers and soldiers, destroyed the said stock of liquors belonging to the plaintiff herein as a necessary measure to prevent drunkenness, breaches of the peace, and rioting, and as an example to other retail liquor dealers, to prevent them, as well as the plaintiff herein, from either selling or giving away intoxicating liquors later than 7 o'clock in the evening and before 8 o'clock in the morning."

The reply admits the official character of each of the defendants; admits that the proclamation, the order, and amended order were issued; that the appealing defendants destroyed the property in question, and denies all other facts pleaded by way of defense. After issues were joined, but before trial, Dennis Herlihy died, and the executor of his last will was substituted as a party to the action. Upon the trial plaintiff abandoned his claim for punitive damages, made out a prima facie case in other respects, and called Maj. Donohue as a witness to prove the destruction of the property. On cross-examination counsel for defendants sought to prove the facts pleaded in the answer and denied by the reply, but the offered evidence was excluded as not within the range of proper cross-examination. In their case in chief, defendants again offered the same character of evidence, but it was objected to upon the following, among other, grounds:

"That there is no plea in the answer that the destruction of the property or any of the property was at all necessary to prevent the increasing or spreading out of the insurrection or to aid in suppressing any insurrection."

The objection was sustained, and the evidence was excluded. The court dismissed the action as to certain other defendants originally joined, and directed a verdict in favor of plaintiff and against these appealing defendants, leaving to the jury for determination the amount of compensatory damages only. From a judgment entered upon a verdict for plaintiff, this appeal is prosecuted. The correctness of the trial court's ruling in excluding defendants' offered evidence is the question presented for review.

The right of a person to acquire, hold, and protect property, to be secure in his possession of it against unreasonable seizure, and to retain it until deprived of it by due process of law, is, as among English-speaking people, as old as the common law itself. Its origin antedates by many years the guaranty contained in Magna Charta. The right itself was the inheritance of our people who inhabited the territory acquired from Great Britain at the close of the Revolution and was adopted by the people of the territory of Montana by its first legislative assembly, and was continued in force thereafter. It is now embodied in the Bill of Rights (article 3 of our state Constitution). When, therefore, plaintiff alleged and proved his ownership of the property, its destruction by these defendants without his consent, and his damages consequent upon that act, he made out a prima facie case. Indeed, in the light of the pleadings, little proof was required from plaintiff, for by their admission of plaintiff's ownership and their destruction of the property, defendants rendered themselves liable in nominal damages at least, unless they could offer legal justification for their act. The answer, considered in its entirety must be viewed as in the nature of a confession and avoidance--an admission of the...