Knowlton v. Ross

• Decision Date: 07 September 1915
• Citation: 95 A. 281
• Parties: KNOWLTON v. ROSS et al.
• Court: Maine Supreme Court

95 A. 281

KNOWLTON

v. ROSS et al.

Supreme Judicial Court of Maine.

Sept. 7, 1915.

Motion from Supreme Judicial Court, York County, at Law.

Action by Harriet L. Knowlton against Frank B. Ross and others. There was a verdict for plaintiff, and defendants move for new trial. Motion for new trial sustained.

Argued before SAVAGE, C. J., and SPEAR, KING, BIRD, and HANSON, JJ.

Cleaves, Waterhouse & Emery, of Biddeford, for plaintiff. John A. Snow, of Biddeford, and E. P. Spinney, of North Berwick, for defendants.

SAVAGE, C. J. This is a suit for false Imprisonment, with a count for trover. The verdict was for the plaintiff, and the case comes before us on the defendants' motion for a new trial.

The plaintiff claims that she was restrained of her liberty by the defendants under circumstances constituting false imprisonment, until by means of the duress of such imprisonment she delivered to them a valuable diamond ring in pledge as security for the payment of a bill owed by her husband to one of them, and of another bill claimed to be owed by another person. The count in trover is for the conversion of the ring.

We first notice a question of practice. The parties were in controversy as to the value of the ring, which was material on the question of damages, if the plaintiff was entitled to recover. One of the reasons alleged in the motion for a new trial is the misconduct of plaintiff's attorney in his closing argument to the jury, in that ho said:

"That the plaintiff) stood ready to credit the sum of $800 on any verdict that the jury might return for the plaintiff, if the defendants would deliver to the plaintiff said ring."

It is obvious that such language could not be other than prejudicial, since it would tend to remove from the jurors' minds any sense of responsibility for the amount of damages up to $800, which they might assess for the conversion of the ring. The attorney complained of testified that he said to the jury only that he had no doubt the plaintiff would gladly allow $800 upon any verdict which might be rendered, if the ring was returned. Even in that form, the argument is not to be commended. But at the time of the argument defendants' counsel made no protest or objection. And that is fatal to his present contention. The rule is well settled. If counsel in addressing the jury exceed the limits of legitimate argument, it is the duty of opposing counsel to object at the time, so that the presiding justice may set the matter right, and instruct the jury with reference thereto. If the justice neglects or declines, after objection, to interfere, redress may be sought by a bill of exceptions. Rolfe v. Rumford, 66 Me. 564. If the offending counsel, after being required to desist or retract, refuses to do so, the remedy is by a motion for a new trial. Powers v. Mitchell, 77 Me. 861. So, if the remarks are of such a character that even the intervention of the justice is not deemed to have removed the prejudice and cured the evil, the remedy is by motion. Sherman v. M. G. R. R., 86 Me. 422, 30 Atl. 69; State v. Martel, 103 Me. 63, 68 Atl. 454. But, in any event, objection must be made at the time; if not so taken, it is considered as waived. State v. Watson, 63 Me. 128; Powers v. Mitchell, supra.

But we think the motion must be sustained upon another ground, namely, that it is manifestly against the evidence. The evidence is sharply conflicting; but, after a careful analysis of it, we think that so much of it as the plaintiff relies upon, and which the jury might properly have found to be true, does not sustain the verdict.

It appears that the plaintiff's family— that is, her husband, herself, and their two daughters—had been guests for several years at the summer hotel of Mr. Jacobs, one of the defendants, at Ogunquit. The bills for 1907 and 1908 had not been paid. In July, 1909, the family spent two days at the hotel. They had with them a friend, Mr. Lynch. The bills for all were, charged to and paid by Mr. Knowlton, the plaintiff's husband. The plaintiff claims that at that time some talk was made about coming back later in the season, and that Mr. Jacobs showed them some rooms in a cottage of which he had the use, and told them that they could have them for $100 a week for all five, the four Knowltons and Lynch. This is denied by the defendants. In August, the plaintiff telephoned the management of the hotel for rooms, and the great weight of the evidence shows, we think, that she was told that they had no rooms available for them. Notwithstanding this, on the next day, August 17th, the family and Mr. Lynch appeared, and after some colloquy were assigned to the cottage, but not to the rooms which the plaintiff says Mr. Jacobs had shown to them in July. From all this the plaintiff contends that Lynch was the guest of the family, and was so understood to be by Mr. Jacobs, and that for that reason Lynch's board was included in the $100 a week which was to be charged for the family. But Mr. Jacobs, denying that there was any arrangement made in July for the family or Lynch, charged Lynch $20 a week for his board, and charged Mr. Knowlton $100 a week for the board of himself, wife, and daughters. Mr. Jacobs' also claims that, owing to the failure of Knowlton to pay in 1907 and 1908, he declined to receive the family as guests until Mrs. Knowlton had promised to be personally responsible for the bill. This she denies. At the end of two weeks Knowlton gave the bookkeeper a draft for $225, payable September 16th, which was credited on his account. All the foregoing is material only as it tends to throw light on what happened on September 6th.

On that day Mr. Jacobs placed the bill against Knowlton and the one against Lynch in the hands of the defendant Ross for collection. Capias writs were made against these two on the strength of the oath of Jacobs that they were "about to depart and reside beyond the limits of the state," etc. It was later learned that Knowlton had gone to Boston. But Lynch was still at the hotel. Ross, with a deputy sheriff, went into a room, and Lynch was sent for. When he came in he was shown the writ against himself, and informed that he must pay, give bond, or go to jail. He protested that he was there only as a guest of the Knowltons, and therefore that the indebtedness was not his. At Lynch's request, the plaintiff was sent for to explain the matter. She came, and she, too, protested that the indebtedness was not Lynch's, but that it was her husband's. During the interview the writ against Knowlton was produced and shown to the plaintiff. In the account annexed no credit was given for the draft which the bookkeeper had received, as Jacobs claims, without authority.

So far, there is no material disagreement; but as to the other details of the interview, the parties are wholly at variance. The plaintiff claims that when she went into the room the doors were closed, and as she thinks locked. At the same time she says that the deputy sheriff and the hotel manager...