Kossouf v. Knarr

• Citation: 206 Pa. 146,55 A. 854
• Decision Date: 11 May 1903
• Docket Number: 197
• Parties: Kossouf, Appellant, v. Knarr
• Court: Pennsylvania Supreme Court

55 A. 854

206 Pa. 146

Kossouf, Appellant, v. Knarr

No. 197

Supreme Court of Pennsylvania

May 11, 1903

Argued April 20, 1903

Appeal, No. 197, Jan. T., 1902, by plaintiff, from judgment of C.P. Clearfield Co., Sept. T., 1899, No. 366, on verdict for defendants in case of Joseph Kossouf v. Henry S. Knarr and George W. Hilliard. Reversed.

Trespass to recover damages for false imprisonment. Before GORDON P.J.

At the trial it appeared that the defendant Knarr, who was burgess of the borough of Du Bois, issued a warrant for the arrest of the plaintiff for erecting a building contrary to a borough ordinance. The warrant was issued without information, and not on view. The plaintiff was arrested and locked up over night on his failure to pay the fine imposed upon him.

The court gave binding instructions for defendant.

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned was in giving binding instructions for defendant.

The judgment is reversed with a venire facias de novo.

Singleton Bell, for appellant. -- In an action for damages for false imprisonment, probable cause is a matter of defense and must be affirmatively shown: Grohmann v. Kirschman, 168 Pa. 189; McCarthy v. DeArmit, 99 Pa. 63.

On principle, neither malice nor want of probable cause is an essential element in the constitution of an action for false imprisonment: McCarthy v. DeArmit, 99 Pa. 63; Neall v. Hart, 115 Pa. 347; Grohmann v. Kirschman 168 Pa. 189.

The act of a judicial officer beyond his jurisdiction will render him liable in false imprisonment in the same manner as when he has no jurisdiction. In fact, the two things are exactly the same in principle and effect: Reid v. Wood, 2 Chester County Rep. 513; Gallitzin Borough v. Gains, 7 Kulp, 479.

The arrest was made upon a warrant which issued without the information which the law required to support it, and the burgess had no jurisdiction of the defendant: Borough of Plymouth v. Williams, 8 Kulp, 167; Pittston Borough v. Dymond, 7 Kulp, 431; West Pittson Borough v. Dymond, 8 Kulp, 12; Kessler v. Hoffman, 9 Pa. Dist. Rep. 365.

Under the facts here, the law specifically requiring a sworn information, and none ever being made, the burgess is liable in damages for false imprisonment: Kessler v. Hoffman, 9 Pa. Dist. Rep. 365; Tillman v. Beard (Mich.), 46 L.R.A. 215; Glazer v. Hubbard (Ky.), 39 L.R.A. 210; Leger v. Warren (Ohio), 51 L.R.A. 193; Truesdell v. Combs, 33 Ohio 186.

A. L. Cole, for appellee, cited: McElhattan v. Kane, 7 Pa. C.C. Rep. 313; Neall v. Hart, 115 Pa. 347; McCarthy v. DeArmit, 99 Pa. 63.

Before DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE MESTREZAT:

There is but a single question in this case and that is whether the learned trial judge erred in directing a verdict in favor of the defendant, Knarr. It is conceded that the evidence established no liability against Hilliard, the other defendant, and that the court below was right in directing a verdict for him. In July, 1899, Knarr was the burgess, and Hilliard the chief of police, of the borough of Du Bois, in Clearfield county. Kossouf, the plaintiff contrary to the provisions of an ordinance, began the erection of a cased brick building in the borough. After some progress had been made, the burgess, on the evening of July 20, 1899, told Kossouf that the work must cease and the building must be torn down, which the latter agreed should be done. The next day the burgess was absent from the borough, and on his return in the evening, he was informed that Kossouf, notwithstanding his promise, was proceeding with the erection of the building. He, thereupon, and without any information having been made, issued a warrant for the arrest of Kossouf and delivered it to Hilliard, the policeman, who arrested Kossouf and took him before the burgess about ten o'clock of...