Olson v. Horton Motor Company, a Corp.
| Decision Date | 17 November 1921 |
| Citation | 185 N.W. 365,48 N.D. 490 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ransom County, North Dakota McKenna, J.
Judgment reversed.
Judgment reversed. Case remanded. Appellant entitled to his costs and disbursements on appeal.
Lawrence Murphy and Nilles, for appellants.
"Arrest under a warrant, valid in form, issued by competent authority on a sufficient complaint, is not false imprisonment, though the indictment under which the warrant issued was procured maliciously and by artifice and misrepresentation, for the purpose of extorting money. The proper remedy is not an action for false imprisonment, but for malicious prosecution. Judgment (C. C. A. 1896) 77 F. 271, affirmed. Whitten v Bennett, 86 F. 405; 30 C. C. A. 140.
The complaint being sufficient to give the magistrate jurisdiction, the complainant who presented the same was likewise exempt from liability for false imprisonment, and could be reached, if at all, only in an action for malicious prosecution, Judgment (1904) 88 N.Y.S. 871, 43 Misc. 292, affirmed.--Gilbert v. Saterlee, 81 N.Y.S. 960, 191 A.D. 313.
"In an action for an arrest and false imprisonment, where defendant justifies under a warrant, the warrant, prima facie, proves itself, and it is for plaintiff to show that it was illegally issued.
In an action against a deputy marshal for false imprisonment on proof that he was an officer de facto, the court in absence of proof to the contrary, will presume that he was also an officer de jure. Prell v. McDonald, 7 Kan. 426, 12 Am. Rep. 423.
"An action for false imprisonment will not lie where plaintiff has not been arrested; and, though his manual seizure is not necessary to an arrest, there must be some sort of personal coercion." Hill v. Taylor, 50 Mich. 549; 15 N.W. 899.
"There is no legal wrong unless the detention was involuntary." 19 Cyc. Law. & Proc. p. 323.
An advocate has neither duty nor right to appeal to prejudices, just or unjust, against his adversary, dehors the very case he has to try. The very fullest freedom of speech within the duty of his profession should be accorded to counsel; but it is license not freedom, of speech, to travel out of the record, basing his argument on facts not appearing, and appealing to prejudices irrelevant to the case and outside of the proof." Thomp. Trials, § 963. Hall v. Wolff, supra; People v. Carr, 64 Mich. 702; 31 N.W. 590; Turner v. State, 4 Lea, 206; Festner v. Railroad Co. 17 Neb. 280; 22 N.W. 557; Paper Co. v. Banks, 15 Neb. 20; 16 N.W. 833; Ferguson v. State, 49 Ind. 33; Koelges v. Insurance Co., 47 N.Y. 638; Mitchum v. State 11 Ga. 615; Rolfe v. Rumford, 66 Me. 564; Bullard v. Railroad Co. 64 N.H. 27; 5 A. 838; Bulliner v. People, 95 Ill. 396; Brown v. State, 60 Ga. 210; Northington v. State, 14 Lea. 424; Flint v. Com. 81 Ky. 186; Sullivan v. State, 66 Ala. 48; Tucker v. Hennicker, 41 N.H. 317; Gallinger v. Traffic Co. 67 Wis. 529; 30 N.W. 790; Henry v. Railroad Co. 66 Iowa 52; 23 N.W. 260; Palmer v. Railroad Co. (Idaho) 13 P. 425; Lindsay v. Pettigrew (S. D.) 52 N.W. 874.
The Supreme Court of Wisconsin, in passing upon this question under a statute like our own, has repeatedly held that a general instruction is not proper in connection with a special verdict, and that it is error to inform the jury as to the effect of their answers upon the ultimate rights of the parties. Reed v. City of Madison, 85 Wis. 667; 56 N.W. 182; Coates v. Town of Stanton, 90 Wis. 130; 62 N.W. 619; Conway v. Mitchell, 97 Wis. 290; 72 N.W. 752; Kohler v. West Side Co. 99 Wis. 33; 74 N.W. 568; Ward v. C., M. & St. P. Ry. Co. (Wis.) 78 N.W. 442; Baxter v. C. & N.W. Ry. Co. (Wis.) 80 N.W. 644; Sladky v. Marinette Lumber Co. (Wis.) 83 N.W. 514; Musbach v. Wisconsin Chair Co. (Wis.) 84 N.W. 36; Mauch v. City of Hartford, (Wis.) 87 N.W. 816; Ryington v. City of Merrill, (Wis.) 87 N.W. 26; See also I., P. & C. Ry. Co. v. Bush, 101 Ind. 582.
Curtis & Remington & E. T. Burke, 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 Motor Car 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.
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