Ingles v. Hotze
| Decision Date | 06 October 1942 |
| Docket Number | Case Number: 30316 |
| Parties | INGLES et al. v. HOTZE |
| Court | Oklahoma Supreme Court |
¶0 1. OFFICERS--Liability on official bond for act done within limits of official authority.
When an officer, while doing an act within the limits of his official authority, exercises such authority improperly, or exceeds his official power or abuses an official discretion vested in him, he becomes liable on his official bond to the person injured.
2. SAME--Surety not exonerated by fact peace officer acted improperly in performing his duties.
The fact that a peace officer may have acted improperly in performing his duties will not exonerate the surety on his official bond from liability for his conduct.
Appeal from Court of Common Pleas, Oklahoma County; Charles W. Conner, Judge.
Action for false imprisonment by Veatrice Hotze against George Ingles and others. Judgment for plaintiff, and defendants appeal. Affirmed.
Robert D. Crowe, of Oklahoma City, for plaintiffs in error.
A. C. Hough and C. C. Andrews, both of Oklahoma City, for defendant in error.
¶1 The plaintiff, Veatrice Hotze, filed an action for false imprisonment against the defendants, George Ingles, and the sureties on his bond, Bessie Taylor, and J. T. McGraw. Trial to a jury resulted in a verdict for the plaintiff in the sum of $200, from which the defendants have appealed. Three specifications of error are presented in the brief. The first one is that the evidence was not sufficient to sustain the verdict and judgment.
¶2 The facts disclose that on or about the 12th day of August, 1939, at 11 o'clock p.m. the defendant George Ingles came upon the plaintiff and one Howell parked in a truck at the side of the highway near Southwest 35th street and Meridian avenue in Oklahoma county. The truck had high sideboards and was completely enclosed. Defendant Ingles climbed up the side of the truck and threw a flashlight on the two persons in the inside of the rear or bed of the truck. Howell got out of the truck and after a few words with the defendant Ingles, Ingles directed plaintiff to get in his car and go with him to the office of a justice of the peace. This she did without complaint and defendant Ingles swore to and filed a complaint charging plaintiff with disturbing the peace "by the use of loud and boisterous languages." A warrant was issued on this complaint and plaintiff was placed in the county jail until she had perfected a bond. The case was never tried, but, after plain_ tiff had employed an attorney, same was disposed of by being dismissed by the county attorney for "failure to prosecute."
¶3 The defendant Ingles undertook to justify the arrest by the statement that, having received complaints from the neighborhood from which the arrest was made that a breach of the peace was being committed, he proceeded to the neighborhood and in driving around in that vicinity he found plaintiff and Howell parked in the place mentioned above, and that when he climbed up in the truck and flashed his light on the couple the man jumped up, thus indicating to Ingles that they were or had been in a compromising position. The plaintiff denied this and introduced evidence to establish that she and Howell were sitting in the bed of the truck carrying on a harmless conversation. No attempt was made by Ingles to sustain the complaint as to the breach of peace and he explains his filing this form of complaint by stating that in the conversation had with the said Howell outside the truck, Howell asked him to make the case as light as possible and for this reason he filed the complaint as aforesaid. Plaintiff denies any such conversation, or at least its purport for the purpose of binding her, and it is not contended that she heard or otherwise actively acquiesced in any such request.
¶4 The defendant Ingles was a constable and was acting within his territorial jurisdiction at the time the arrest of plaintiff was made. The codefendants, Bessie Taylor and J. T. McGraw, were the sureties on his official bond, the provisions and conditions of which provided in part: "If he shall faithfully and impartially without fear, favor, fraud or opposition, discharge all other .duties, now or whenever required of his office by law, then this bond to be void, otherwise to remain in full force and effect."
¶5 The first question presented is whether the defendant Ingles was guilty of false imprisonment, and, if so, whether in making the arrest he was acting in such an official capacity as would make his official bondsmen liable.
¶6 To determine the proper solution of the above question, it is necessary to analyze some of the admitted facts on the part of Ingles. The fact that he was a constable and that the arrest was made within his territorial jurisdiction is not disputed. The execution of the bond in question is not in controversy. We then find the defendant Ingles going out to the vicinity in which he made the arrest in his official capacity, to answer a call coming from the particular neighborhood advising him of a disturbance of the peace. He therefore places himself in the neighborhood pursuing his official duties. While somewhere in the neighborhood, he came across the parked truck and made an investigation of the truck and contents, and then, according to his testimony, he observed that a violation of the law was being committed in his presence. He justified the arrest, without a warrant, under 22 O. S. 1941 § 196, which provides in part for such arrest "for a public offense, committed or attempted in his presence."
¶7 One of the grounds for defendant's motion for a new trial is the court's refusal to give defendant's requested instruction pertaining to indecent and lewd exposure in a public place. Without passing on the merits of this request at this point in the opinion, we mention it at this time for its value in establishing the capacity in which the defendant was acting. The defendants were therefore justifying the arrest of plaintiff without a warrant under crime pertaining to "indecent exposure" as defined in 21 O. S. 1941 § 1021, or under 21 O. S. 1941 § 22, which pertains to, an offense which "openly outrages public decency, and is injurious to public morals." The violation of the first section above referred to as a felony, while a violation of the latter section is a misdemeanor. Under either of...
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