Rounds v. Bucher

• Decision Date: 11 March 1960
• Docket Number: No. 9966,9966
• Citation: 98 A.L.R.2d 962,137 Mont. 39,349 P.2d 1026
• Parties: , 98 A.L.R.2d 962 Robert M. ROUNDS, Plaintiff and Appellant, v. F. J. BUCHER and Commercial Insurance Company, a Corporation, Defendants and Respondents.
• Court: Montana Supreme Court

Page 1026

349 P.2d 1026

137 Mont. 39, 98 A.L.R.2d 962

Robert M. ROUNDS, Plaintiff and Appellant, v. F. J. BUCHER and Commercial Insurance Company, a

Corporation, Defendants and Respondents.

No. 9966.

Supreme Court of Montana.

Submitted Jan. 11, 1960.

Decided March 11, 1960.

Ralph J. Anderson, Stanley P. Sorenson, Helena, Ralph J. Anderson, argued orally, for appellant.

Charles E. Marshall, McKenna & Ronish, Lewistown, J. E. McKenna and Donald E. Ronish, Lewistown, argued orally, for respondent.

CASTLES, Justice.

This is an action for false imprisonment brought by the plaintiff against the sheriff of Fergus County and the surety on his official bond. At the conclusion of plaintiff's case, the defendants made a motion for nonsuit which was sustained by the district court. This appeal is from the judgment of dismissal.

On October 20, 1956, plaintiff sent a check to Eck's Pharmacy, Lewistown, Montana, in payment for certain drugs which he had ordered. This check was signed 'Robt. M. Rounds' and was drawn on the Midland National Bank of Billings, Montana. Plaintiff testified that he had funds in the bank sufficient to cover this check under the name of R. M. Rounds. The bank returned the check unpaid and on one of their forms checked the reason as 'signature'.

On December 6, 1956, a warrant of arrest was issued charging plaintiff with a misdemeanor. Plaintiff was arrested by the sheriff of Meagher County at about 12:30 p. m. on Saturday, January 19, 1957. He stayed in the Meagher County jail until about 4:00 p. m. when the defendant Bucher arrived to take him back to Lewistown. They arrived in Lewistown about 6:00 p. m. of the same day and plaintiff was placed in the Fergus County jail. He was not taken before the justice of the peace who issued the warrant until sometime between 11:00 a. m. and noon on Monday, January 21, 1957.

Plaintiff urges error by the trial court in two particulars: 1. That the trial court erred in sustaining defendants' motion for nonsuit, and 2. That the court erred in denying plaintiff's motion to strike certain allegations from defendants' answer.

Proof introduced by the plaintiff showed his arrest, his imprisonment and his subsequent appearance before the magistrate, who testified as follows:

'Q. And were not Justice of the Peace in January of 1957? A. Yes, sir.

'Q. And you still are? A. Yes, sir.

'Q. Now, Mr. Sharp, do you reside here in Lewistown? A. Yes, sir.

'Q. And what is your practice as to when you arrive at your office in the morning? A. Well, suppose to get up there at 9:00 o'clock, but sometime five or ten minutes late; if there's anything doing I stay and if there's nothing doing, I go downtown * * *'.

Plaintiff relies upon the rule that 'upon a motion for nonsuit, the evidence must be taken in the light most favorable to plaintiff, and deemed to establish whatever it fairly tends to prove; every legitimate inference that may be drawn from the facts is to be considered in plaintiff's favor; no cause should ever be withdrawn from the jury unless the conclusion from the facts necessarily follows as a matter of law that no recovery can be had upon any view which necessarily can be drawn from the facts which the evidence tends to establish.' Pyles v. Melvin (Armstrong), 84 Mont. 338, 345, 275 P. 753, 755, and cases cited therein.

While we recognize this rule as being well-established, in the instant case, plaintiff failed to prove one essential element of his cause of action. Plaintiff's complaint alleged 'that at all times herein mentioned there was a magistrate available before whom the defendant could have been taken.' The record in the case is devoid of any proof which would establish, or from which the court or the jury could draw a legitimate inference, that the magistrate was available between the hours of 9:00 and 11:00 a. m., on January 21, 1957. The fact that the magistrate presently, at the date of trial, February 5, 1958, keeps these hours and that this is his custom now is of no help in this respect.

In Richardson v. Farmers Union Oil Co., 131 Mont. 535, 312 P.2d 134, 139, the court quoting from 20 Am.Jur., Evidence, section 210, page 208, said:

"The presumption of the continued existence of a person, a personal relation, or a state of things is prospective, and not retrospective. Such a presumption never runs backwards; the law does not presume, from proof of the existence of present conditions or facts, that the same facts or conditions had existed for any length of time previously."

The main element upon which plaintiff bases his case is defendant Bucher's unnecessary delay in taking him before a magistrate. Section 94-5912 reads in part, 'The defendant must in all cases be taken before the magistrate without unnecessary delay * * *.'

It is incumbent upon the plaintiff, in a suit for false imprisonment, to prove an unnecessary delay. In this state we ha...