Olson v. Horton Motor Co.
| Citation | 48 N.D. 490,185 N.W. 365 |
| Parties | OLSON v. HORTON MOTOR CO. et al. |
| Decision Date | 17 November 1921 |
| Court | United States State Supreme Court of North Dakota |
The plaintiff brought an action against defendants for false arrest and imprisonment. Certain issues of fact were submitted to a jury on a special verdict. The court, in submitting the special verdict, also gave what is regarded as general instructions of law. It is held that this was reversible error.
At the time of submitting a special verdict the court also submitted two forms of general verdict under the same instructions and in connection with the special verdict. It is held the submission of the general verdicts in the circumstances in which they were submitted was reversible error.
Appeal from District Court, Ransom County; G. M. McKenna, Judge.
Action by Henry O. Olson against the Horton Motor Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.Lawrence, Murphy & Nilles, of Fargo, for appellants.
Curtis & Remington, of Lisbon, and E. T. Burke, of Bismarck, for respondent.
This action is one where plaintiff recovered judgment for $1,500 against the three defendants, Horton, Kirby, and Martincka, as officers, servants, agents, and employees of the Horton Motor Company, for damages for false arrest and imprisonment.
The complaint, in substance, charges that the defendants conspired together to cause his unlawful arrest and imprisonment. At the close of plaintiff's case the action against the Horton Motor Company was dismissed and the case submitted to the jury on a special verdict as to the three defendants above named. Damages were fixed at the amount above named. Judgment was entered on the special verdict. The appeal is from the judgment. The complaint is short and in the ordinary form in such actions.
The answer, after the interposition of a specific denial of the allegations of the complaint, pleads a justification of the arrest, alleging that it was by authority of law and by virtue of a warrant of arrest duly issued and in the hands of proper authorities and served in an action entitled State of North Dakota, Plaintiff, v. J. O. Jensen and Hank Olson, Defendants; that the action was commenced and pending before Hon. H. F. Miller, justice of the peace of Cass county, N. D., who had jurisdiction to issue the warrant of arrest; that the arrest was ordered and directed by the sheriff of Cass county, he having in his possession the warrant of arrest commanding him to arrest Olson to answer the charge of embezzlement.
The defendants specified 26 errors of law and 11 specifications of insufficiency of the evidence to sustain the verdict and judgment. The material facts in the case are as follows:
Olson, a young man, lived at Lisbon, where he operated a garage. Jensen lived in the same town, and was selling agent of Chalmer and Maxwell automobiles for the Horton Motor Company of Fargo. There was some difficulty between Jensen and the Horton Motor Company not necessary to detail here. On or about the 5th day of August, 1920, Olson went to Halstad, Minn., on an errand for Jensen; while there, on the evening of the date last mentioned, and while he was at the residence of one Mrs. Moe, the mother of Mrs. Jensen, he was arrested by the village policeman, one Sather, who was directed to make the arrest by Kirby and Martincka, two of the defendants who were at this time at Halstad. Sather turned Olson over to Kirby, who took him to Fargo, but did not there turn him over to the sheriff, but instead he took him to the office of defendant Horton, who theretofore and prior to the arrest had sworn to a complaint before H. F. Miller, the justice of the peace, charging the plaintiff and Jensen with embezzlement of an automobile claimed to be the property of the Chalmers Motorcar Company, and upon such complaint the warrant was issued and delivered to the sheriff of Cass county for service. The car in which plaintiff drove to Halstad was his own car.
The proof seems to be quite clear that there was no cause to arrest the plaintiff. He was not in the employ of the Horton Motor Company. He was restrained of his liberty and right of locomotion, not by any public officers, but, as hereinafter stated, by Horton and Kirby. It appears that Martincka did not come to Fargo, and that he had nothing to do with what transpired there in Horton's office. It also appears that this is the particular time, if any, when the plaintiff was restrained of his liberty and right of locomotion. Neither Horton nor Kirby were public officers, but in some way were connected with the Horton Motor Company. Olson was restrained at Horton's office from about 11:00 o'clock p. m. until about 3:00 o'clock a. m. the following morning, when he was permitted to go where he wished. While there, he was questioned by Horton and Kirby, presumably on matters relative to his arrest.
Though the defendants have assigned many errors, they have abandoned everything except the following three points: (1) The total insufficiency of the evidence to justify a verdict for false arrest or false imprisonment against any of the defendants. (2) Prejudicial remarks of counsel and plaintiffs to the jury calling for punitive damages. (3) Several errors of the trial court with respect to the submission of a special verdict, among which are the submission of general verdicts together with a special verdict, the giving of general instructions with the special verdict, and the giving of instructions clearly advising the jury of the effect the answer to such question would have upon the rights of the parties, and the failure to instruct as to specific questions. As we view the record on appeal, it will be necessary, for the reasons hereinafter set forth, that a new trial be granted. It will not be necessary to here discuss other than the third point above stated. In passing, it may be well to remark, as there will be a new trial, the remarks of counsel mentioned in the second point and claimed to be prejudicial will need no discussion.
In the course of giving the instructions the court submitted a special verdict, which consisted of eight distinct and separate questions, all of which the jury answered. The court at the close of its instructions, in addition to submitting the special verdict, submitted to the jury two forms of general verdict, one of which was in such form that, if the blanks in it were properly filled by the jury, it would be a verdict in plaintiff's favor. The other, if the blanks were filled, would be a verdict in defendant's favor. With reference to these forms of general verdict the court stated to the jury that-
“Whichever form of verdict you find, you will have your foreman date and sign the same, and when you have agreed upon your verdict you will notify the bailiff and you will be returned into court.”
The defendant at this time objected to the submission of the general verdicts, and excepted to the submitting of general instructions and to the failure to instruct as to specific questions. The jury retired, and after a short time returned in open court for further instructions, and the following occurred:
“Foreman of the Jury: I do not really understand how to fill out this blank.
The Court: This is the special verdict blank.
Foreman of the Jury: Yes, sir; we do not understand that we are to write in the names of each individual of the defendants here, or whether they are to be written in as one.
The Court: This inquiry pertains to the general verdict. Does it not?
Foreman of the Jury: Yes; there was three blanks here, you see.
The jury then retired and returned with the special verdict, and the court read each question therein to the jury and asked them if the answers to the questions were as they had found them, and the jury answered in the affirmative. It is not necessary to set out the questions and answers at length.
[2] In these circumstances the query presented is: Can it be said that the jury may not have been prejudiced by the submission of the general verdicts in connection with the special verdict, where, as here, the instructions given were such as may be termed general instead of being confined to the matters covered by the special verdict and such additional instructions as the court may properly give in cases where a special verdict is taken. As we read the instructions, they are so complete that, if a special verdict had not been submitted and the case had been submitted to the jury for a general verdict only, they would have been sufficient.
[1] There is abundant authority sustaining the principle that where a...
To continue reading
Request your trial