Hushaw v. Dunn

• Decision Date: 06 November 1916
• Docket Number: 8662.
• Citation: 62 Colo. 109,160 P. 1037
• Parties: HUSHAW v DUNN.
• Court: Colorado Supreme Court

160 P. 1037

62 Colo. 109

HUSHAW v DUNN.

No. 8662.

Supreme Court of Colorado

November 6, 1916

Error to District Court, Otero County; J.E. Rizer, Judge.

Action by Joseph Hushaw against S.H. Dunn.Judgement for defendant and plaintiff brings error.Affirmed.

Thos R. Hoffmire,, of Pueblo, for plaintiff in error.

John H Voorhees, of Pueblo, for defendant in error.

SCOTT, J.

The defendant in error, acting as town marshal, of the town of Fowler, on the 6th day of June, 1913, arrested the plaintiff in error, upon the charge of disturbing the peace specifically, "by chasing, annoying and frightening Stella Dunn, ____ Beckstedt, and ____ Bernard."The arrest was without a warrant.The time was about 8:20 o'clock in the evening.The offense committed in the presence of the officer.The officer took the prisoner to jail, searched and took from him a pocketbook and money and locked him up.The money amounted to about $46.The next morning the officer took his prisoner before the police magistrate, made a written complaint, to which the prisoner pleaded guilty, and was fined in the sum of $40 and costs, amounting to $44.60.Before plea and judgment, the marshal handed the prisoner his pocketbook, together with all the money taken from him the evening before, and out of which the prisoner paid his fine and costs.This is an action in damage by the then prisoner, plaintiff in error.

The complaint set forth two causes of action.The first for the wrongful conversion of the defendant officer, to his own use, of the plaintiff's money, and charging that in the taking, converting, and retaining the money, the defendant officer acted with wanton and reckless disregard of plaintiff's rights and feelings, and with malice toward plaintiff, and thereby willfully committed a fraud against plaintiff.The prayer was for judgment for the sum of $46, and for $1,000 as exemplary damages.The second cause of action was for damages for alleged false imprisonment.

After the plaintiff has offered his testimony which disclosed the facts here recited, the court upon motion of defendant directed a verdict in his favor, which is the only alleged error of which there is complaint.

It is clear that there was no conversion of plaintiff's money wrongful or otherwise, nor is there any testimony in the case which indicates that there was any intent upon the part of the officer to use, keep, or convert such money, or to do...