Joske v. Irvine

• Court: Texas Supreme Court
• Writing for the Court: Denman
• Citation: Joske v. Irvine, 44 S.W. 1059 (Tex. 1898)
• Decision Date: 21 March 1898
• Parties: JOSKE v. IRVINE.

44 S.W. 1059

JOSKE v. IRVINE.

Supreme Court of Texas.

March 21, 1898.

Error to court of civil appeals of Fourth supreme judicial district.

Action by James F. Irvine against Alexander Joske for false imprisonment. Judgment for plaintiff, and defendant appealed to the court of civil appeals, which affirmed the judgment (43 S. W. 278), and defendant brings error to the supreme court. Reversed.

Franklin & Cobbs, for plaintiff in error. C. K. Breneman, for defendant in error.

DENMAN, J.

Joe Shely, an officer of the city of San Antonio, arrested James Irvine without a warrant, and confined him nearly 24 hours in the city prison. Irvine sued Alexander Joske to recover damages, claiming that such arrest was unlawful and directed by him. The arrest was not sought to be justified under any statute or charter provision, but under a city ordinance authorizing the arrest of suspicious characters without warrant. The trial court having instructed the jury that the arrest was unlawful, verdict and judgment were for plaintiff for $250, which having been affirmed by the court of civil appeals, Joske has brought the case to this court upon writ of error.

Said charge is assigned as error. The court of civil appeals overruled the assignment on the ground that the city charter did not authorize the council to pass such an ordinance. We were inclined to hold otherwise at the time of granting the application for writ of error, but do not feel called upon to determine the question, for the reason that we do not consider there is any evidence in the record of the existence of such an ordinance. The only testimony on the subject is that of Shely, as follows: "I made the affidavit against Irvine. The warrant issued on the ground of suspicious character. Under the city ordinance we have a right to do so during investigation. * * * I have a right, as an officer acting in the discharge of his duty, to arrest anybody whom I think has committed an offense against the state or city. I thought this man had committed an offense from his own actions. I did not see him commit any offense. I had authority to arrest Mr. Irvine, and take him to the city jail and confine him there, without a warrant and without any complaint against him. I made complaint against him the next morning. I couldn't make it until the next morning, because the recorder was not there." His evidence further shows that he arrested Irvine in the evening, but did not make the affidavit until the next morning.

We construe the first portion of his testimony above quoted as tending only to establish an ordinance authorizing the making of an affidavit against one as a suspicious character in order to hold him during an investigation of his case. It does not tend to show the existence of an ordinance authorizing a person's arrest without a warrant on the ground that the officer considers him a suspicious character. The latter portion of his testimony, above quoted, is merely the opinion of the officer as to his authority, and does not purport to state even the substance of an ordinance. It does not even appear to have been based upon an ordinance. It may have been his construction of the statutes and charter authorizing the city officers to arrest without warrant in certain cases. The existence and contents of the ordinance were facts to be established by proof. The proof did not bear upon those issues, but, assuming them to be established, Shely merely gave his opinion as to the authority conferred upon him thereby. This was only his opinion upon a question of law. Such an opinion could not establish the fact—the ordinance —upon which it was based. Since there was no evidence of an ordinance justifying the arrest without warrant, and since it cannot be justified either under the general statutes or any provision of the city charter, the trial court did not err in giving said charge. We are therefore of opinion that the record shows that plaintiff's arrest was unlawful.

But more must be shown to hold Joske liable therefor. Upon this subject the court charged the jury: "If you believe from the testimony that the defendant, Alexander Joske, requested or directed the officer Joe Shely to arrest and confine said plaintiff in jail, then you are instructed that plaintiff is entitled to recover of defendant, Joske." Joske, by proper assignment, urges that the giving of this charge was error, for the reason that there was no evidence tending to show that he "requested or directed" the arrest. Irvine was driving a delivery wagon for Joske Bros., of which Alexander Joske was a member, and in the performance of his duties started out with a number of packages for delivery to various customers of the firm in the city of San Antonio. He returned at night, and informed the stableman that some of the packages, the value of which seems to have been about $30, had been stolen from his wagon, and then, without informing Joske, went to his room. Very soon afterwards Alexander Joske and the stableman appeared at the room, and from that time Irvine's version of Joske's connection with his arrest, as given on his direct examination, is as follows: "Mr. Joske called out, did I live there; called out my name, Jim Irvine. I answered, `Yes, sir;' and he jumped up, and in a very angry way asked what I did with those goods and what I had done with the money. I said, `Mr. Joske, I lost them.' He asked me where, and I told him where they had been stolen from my wagon. I don't know whether he believed my statement or not, but any way he went off, and came back with two police officers, and they questioned me regarding the packages which had been lost, and I told them all I knew about it; that they had been lost or stolen out of the wagon, and told them the place. Some of the police officers said, `You had better come along with us.' Captain Roberts asked me to go along, and I did so. I had my coat on, and we went to the stable, and Mr. Joske asked the stableman what was my condition when I came in, and he said, `He was drunk.' Mr. Joske also requested Captain Roberts to ask the stableman as to my condition when I came in, and the man answered that I was drunk. I told him that I was not. Then he took me to the store, and went inside, and looked over this delivery sheet. Then we went outside the store again, and Mr. Joske and the officers had a talk, and then Frank Roberts, captain of the police, told me I could go; and in the meantime Mr. Joske said, `You come to my office in the morning, but don't take your horse and wagon along.' He discharged me right there. I said, `All right.' So I went home, and the next morning I showed up at the office at his request. I had some change of theirs that I had out the day before. I went up to the shipping clerk, who was the man I did my business with, and I balanced up my account with the exception of $3 that the house owed me for work, which I retained. Then I waited till Mr. Joske came, and he called me into his office, and said: `Tell me what you did with those goods, and I will make it as easy for you as possible; I won't hurt you,'—or words to that effect. Well, of course it made me feel right angry with Mr. Joske to think I had stolen the goods. I answered: `Good Lord, Mr. Joske, you don't think for a moment I stole those goods, do you?' He said: `What did you do with them? What was done with the money?' I said: `They were stolen out of my wagon; that is all I can tell you about it.' Then he went to the shipping clerk, and asked: `Has this man any C. O. D. money?' And the clerk said: `Yes, sir; he has got three dollars.' Then he didn't say another word, but was very angry, and jumped to the telephone, and rang up police headquarters, and said: `Send an officer here at once.' I waited till the officer came, and when he did come Mr. Joske met him, and talked with him, and then called me over to one side, and, with the officer, he asked me about those goods being lost, and I told him just what I have already said,—that they were stolen out of my wagon. Then the officer said: `Mr. Joske says you have three dollars of his money.' I said that I had retained three dollars for wages which he owed me. He said I ought to pay Mr. Joske that money, and I said I would not do so until the law compelled me, because Mr. Joske had discharged me the night before without allowing me to make any explanation, or settle up with him for the goods lost or stolen, and that I intended to keep the money. He then told me there was a law compelling me to pay it, and that I had better pay it. I said that at that rate I would pay him, but that I didn't have enough in my pocket to pay him then, but that I could get it in two minutes; that I could go to my room and get it. He took me along, and we went in his buggy, and as we were going along I noticed that it was about twelve o'clock, and I thought my boarding house was nearest to the store,—nearer than my room,—and I would go there. I was pretty sure I could catch the man I roomed with, and that would save my going to my room, and we did so, and I asked him for a couple of dollars, and he let me have it, and we came back to Joske's,—Detective Shely and myself,—and Mr. Shely remarked to Mr. Joske that `this man didn't go to his room for the money, but went to another man for it.' `Well,' he says, `I will make an affidavit against him, anyhow.' They talked together a little while, and I stayed in Mr. Shely's buggy, and he came back and I said, `What is it?' And Mr. Shely said, `You have got to go with me; you have got to go to jail.' They put me in jail, and kept me there all that evening and until ten o'clock the next morning." Joe Shely, witness for defendant, Joske, testified as to the circumstances attending the arrest as follows: "I was assistant city detective at that time. * * * I was called to Mr. Joske's store, * * * and found Mr. Joske and Mr. Irvine arguing and contending in a very boisterous way. Mr. Irvine seemed to be...