Landrum v. Wells

• Decision Date: 13 June 1894
• Citation: 26 S.W. 1001
• Parties: LANDRUM et al. v. WELLS.
• Court: Texas Court of Appeals

26 S.W. 1001

LANDRUM et al. v. WELLS.

Court of Civil Appeals of Texas.

June 13, 1894.

Appeal from Tom Green county court; Milton Mays, Judge.

Action by H. M. Wells against George B. Landrum and others for false imprisonment. From a judgment for plaintiff, defendants appeal. Reversed.

D. D. Wallace, for appellants.

FISHER, C. J.

This suit was brought by appellee in the county court for $1,000 actual damages for four days' time lost, and mental suffering caused, by an unlawful arrest, and being placed in jail by appellants Broome, and Landrum as constable, and Nasworthy, Harris, and Sterrett as sureties on the official bond of Landrum. Appellants (defendants below) answered by special exceptions, general denial, and, specially, that Broome was a state ranger, and that Landrum was assisting him in making the arrest as a posse comitatus, and not in his official capacity as a constable, and, further, that Broome had a capias issued by the clerk of Limestone county, charging the appellee with murder, and that if he was not the party named in the capias he was arrested by an honest mistake, and that such mistake was caused by the acts of appellee, and that he was not restrained any longer than was necessary to discover the mistake. Verdict and judgment below went in appellee's favor for $500.

As a basis for appellee's action, the petition contains the following averments: "That heretofore, to wit, on or about the 29th day of May, 1891, in the state and county aforesaid, the defendants C. L. Broome, and the said George Landrum, constable as aforesaid, acting under color of his office, unlawfully assaulted petitioner, and forcibly, wrongfully, and tortiously, without probable cause or legal authority, and against the will and over his earnest protest, falsely arrested and imprisoned your petitioner in the county jail of Tom Green county, and restrained him of his liberty by confinement therein for space and period of four days; that, by reason of said false imprisonment as aforesaid, petitioner was damaged to the value of his time lost and interruption from his business in the sum of $300, and by the mental anguish, bodily suffering, the shame and humiliation which he endured by reason of said false imprisonment, in the sum of $700,"— and closes with prayer. This pleading was questioned by special demurrer, because it did not set out the process or authority showing that Landrum was acting officially in the line of his duty as constable when the arrest was made, and because it failed to state the character of business in which the appellee was engaged, and the loss of which he suffered by reason of his arrest. These demurrers being special, we think they should have been sustained. The liability of the sureties of Landrum on his constable's bond would only result when he was acting officially within the line of his duty as constable. The averment in the petition that, in making the arrest, he was acting under color of his office, is not the equivalent of an allegation charging him with acting in an official capacity as constable in making the arrest. The most serious objection to this allegation is that it simply states the conclusion of the pleader. It should state the authority by which Landrum was acting, so that the court, in construing the pleadings, may determine that a cause of action is stated against the sureties. The sureties would only be liable when he was acting by virtue of his authority as a constable, and, before this could be determined, the facts showing the authority under which he acted should be stated. The petition should have stated the character of business in which the appellee was engaged, so that the appellants could be prepared to meet the issue as to its value or the loss sustained...