Richardson v. Capwell

• Decision Date: 27 December 1918
• Docket Number: 3222
• Citation: 63 Utah 616,176 P. 205
• Court: Utah Supreme Court
• Parties: RICHARDSON v. CAPWELL et al

176 P. 205

63 Utah 616

RICHARDSON v. CAPWELL et al

No. 3222

Supreme Court of Utah

December 27, 1918

Appeal from District Court, First District, Box Elder County; J. D Call, Judge.

Action by Howard Richardson against William II. Capwell and D. W Jenkins. From a judgment for plaintiff, defendants appeal.

REVERSED, with directions to dismiss the action as against the defendant Capwell and to grant a new trial as to defendant Jenkins.

A. D McGuire, of Tremonton, and LeRoy B. Young, of Brigham City, for appellants.

Chez & Stine and John C. Davis, both of Ogden, for respondent.

GIDEON, J. FRICK, C. J., and CORFMAN and THURMAN, JJ., concur. McCARTY, J., died after the submission of this cause and before the filing of this opinion.

OPINION

GIDEON, J.

Plaintiff instituted this action to recover damages for false imprisonment. It is alleged that plaintiff was imprisoned by defendants Capwell and Jenkins in the town jail at Tremonton, Box Elder County, Utah, from September 9, 1916, to and including December 5, 1916, and in the county jail of said county at Brigham City from the latter date until January 15, 1917, and that said imprisonment was against the will of plaintiff and without his consent. There are other allegations in the complaint as to neglect and cruel treatment during incarceration; but, in view of the disposition to be made of the case, those allegations are not material here.

Defendants admitted the imprisonment, but denied the allegations as to cruel treatment and neglect, and, as an affirmative defense, alleged that at the times mentioned in the complaint defendant Capwell was the regular qualified and acting justice of the peace in and for the town of Tremonton, and that the defendant Jenkins was the town marshal of said town; that the imprisonment of the plaintiff was by reason of the arrest and conviction of said plaintiff under a town ordinance of said town and after trial and conviction had before the defendant Capwell.

Plaintiff, replying to the affirmative allegations of the answer, denied that Capwell was justice of the peace, and also denied that Jenkins was marshal of said town.

At the time of the acts complained of, town trustees were authorized by general statutory law to prohibit by ordinance or to regulate by license the sale of intoxicating liquors in towns where the qualified electors had voted in favor of such sale. By chapter 71, Laws Utah 1915, town trustees were authorized to appoint certain town officers, including a town marshal and a justice of the peace. Said chapter also provided:

"That the said justice of the peace shall have and exercise all of the powers which are provided by law for other justices of the peace."

Comp. Laws 1907, § 303, delegates authority to town trustees to "enforce obedience to the ordinances of the town" and to provide penalties for breaches of such ordinances "to be prosecuted before the justice of the peace of the precinct in which such town may be situated," subject to the provision:

"That the fine or penalty for any offense shall be less than $ 100, and the imprisonment shall not exceed three months."

The ordinance in question, which was introduced in evidence by the defense, made it a misdemeanor for any one to sell, exchange, barter, dispense, serve, give away, or keep for sale, any intoxicating liquors. It further provided that any one violating the provisions of the ordinance should be guilty of a misdemeanor, and, upon conviction, punished by a fine of not less than $ 50 nor more than $ 299, or by imprisonment of not less than 30 days nor more than six months; or by both such fine and imprisonment. The ordinance further provided that any "natural person" convicted a second time of a violation of the provisions of the ordinance should be punished for such second and each subsequent offense by both fine and imprisonment. The validity of that ordinance is assailed on the ground that the town trustees had no authority to provide a penalty in excess of a $ 100 fine or imprisonment exceeding three months.

Both sides to this controversy concede that the ordinance is invalid, and we shall assume that it is. It may also be stated as established beyond all cavil that both the justice and the marshal acted without malice and upon the theory and honest belief that the ordinance under which the conviction of plaintiff was had was valid.

In its sixth instruction, the court told the jury that the ordinance in question was null and void and of no force or effect; that the judgment entered by defendant Capwell against plaintiff to pay a fine of $ 250, or, in lieu thereof, be imprisoned in the Tremonton jail five months, was void; that such conviction was no bar to plaintiff's recovery against defendants in this case; and that defendants are liable to plaintiff "for some amount of damages to be determined by you as will hereinafter be more fully explained." The giving of that instruction, together with the giving of the eighth instruction, which, in effect, is that the actual damages sustained by plaintiff could not be mitigated or reduced by evidence of the good faith of defendants and absence of malice, are assigned as error and made the basis for the contention that the judgment of the district court should be reversed. It will thus be seen that the question presented for determination is whether or not a justice of the peace acting under a town ordinance admitted to be invalid, where such action is without malice and in good faith, and under the honest belief at the time that such ordinance was valid, and where the offense is within the general jurisdiction of such justice, is liable to an action for false imprisonment.

The theory of plaintiff, as it appears from the record, is that when it was shown that he had been imprisoned, and that such imprisonment was caused or brought about by the acts of defendants he had made out a prima facie case, and it was then incumbent upon the defendants to justify such imprisonment.

The proof submitted upon the part of plaintiff affirmatively showed that he had been deprived of his liberty and imprisoned by reason of, or under, some judicial proceeding. On cross-examination he admitted that he had been before the court; that he was in jail because of a conviction under a charge of selling intoxicating liquor. No proof was introduced on his part to show that such imprisonment was illegal, and the case, as stated above, was tried upon the theory that--

"Every imprisonment of a man is prima facie a trespass, and in an action to recover damages therefor, if the imprisonment is proved or admitted, the burden of justifying it is on the defendants participating therein."

That theory may apply under certain facts; but it is not applicable here, because the plaintiff's own testimony shows that he was confined under and by authority of some judicial proceeding. Such has been held by this court. In Smith v. Clark et al., 37 Utah at page 127, 106 P. 658, 26 L.R.A. (N. S.) 953, Ann. Cas. 1912B 1366, Mr. Chief Justice Straup, speaking for the court, said:

"When, however, the plaintiff by his own evidence shows that he was detained or imprisoned as the result of judicial proceedings, and by the issuance and execution of a warrant, or other legal process issued thereon, he is required, in order to make a prima facie case of false imprisonment, to show something more than a mere detention or imprisonment."

However, in the case at bar no motion for nonsuit was made, and we are therefore called upon to determine whether in this action, under all the facts shown, the court erred in the instructions herein before mentioned.

There is some contention on the part of respondent that there is no proof in the record that appellant Capwell was the justice of the peace of Tremonton, or that appellant Jenkins was marshal. While it is true that there was no official record of either of their appointments introduced in evidence, it nevertheless appears all through the record that they were such officers. The defendant Capwell was permitted to testify without objection that he held the office of justice of the peace of Tremonton at the time. It is also stipulated in the record that what was done by Capwell was done as such justice and under the ordinance in question. There was ample testimony to...