State ex rel. Gehring v. Claudius

Decision Date10 April 1876
Citation1 Mo.App. 551
PartiesTHE STATE OF MISSOURI, ex rel. FREDERICK F. GEHRING, Respondent, v. CHARLES CLAUDIUS et al., Appellants
CourtMissouri Court of Appeals

1. Affidavits in support of a motion to set aside a verdict on the ground of surprise will be disregarded when it appears that the party filing the affidavits anticipated the very evidence by which he alleges he was surprised.

2. When appeals are taken for delay only, damages may be given in actions ex delicto in form, on affirming judgments.

3. When a jury is examined on voire dire, the mode of examination is referred almost exclusively to the discretion of the trial court.

4. An officer serving a civil process has no right to enter a private house forcibly, against the will of the owner or occupant, and, when presenting himself at such house, it is his duty to answer fully and civilly any question as to the character in which he acts, especially if he wears no badge, and to refuse to answer such questions may make him liable to be treated as a trespasser.

5. The principal constable is liable for the acts of his deputy done under color of his authority.

6. It is the duty of the judge of the nisi prius court to preside when counsel address the jury upon the evidence admitted; and whenever, in the absence of the judge, any impropriety or irregularity is committed by the party in whose favor the verdict is rendered, such verdict should be set aside.

7. It is error to allow counsel to read to the jury, in the closing address, anything except the record, the evidence, and the instructions given in the course of the trial, or to refer to, and comment upon, an instruction offered by the other party and refused.

8. When the court, at the close of the testimony, proposes to counsel that they and the jury go to another room to argue the cause, the omission of a party to dissent from such proposal will not prejudice him.

9. When error appears in a record, and there is a possibility that the appellant has been prejudiced by it, the appellate court will reverse the judgment.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

F. & E. L. Gottschalk, for appellants, cited: Douglass v. Stephens, 18 Mo. 367; Garretzen v. Duenkel, 50 Mo. 104; McKeon v. Citizens' R. R. Co., 42 Mo. 80; Schouler on Dom. Rel. 638; 2 Hill. on Torts (4th ed.), 152, sec. 23; 2 Hill. on Torts (3d ed.), 210, sec. 23; State v. Conover & Dutcher, N. J. 224; State v. Mann, 21 Wis. 634; People v. Schuyler, 4 Comst. (N. Y.) 173; 2 Hill. on Torts (4th ed.), 19, sec. 19; Hill. on Torts (4th ed.), 220, sec. 18; Wag. Stat. 1071, sec. 1, p. 1072, sec. 8, p. 1074, sec. 1.

Marshall & Barclay, for respondent, cited: Winters v. Hannibal & St. Jo. R. R. Co., 39 Mo. 469; Pennsylvania & Ohio Co. v. Graham, 63 Penn. St. 290; Smith v. Holcomb, 99 Mass. 552; Semaynis' Case, 3 Co. 91, part 5; Hagar v. Danforth, 8 How. (N. Y.) Pr. 435, and 20 Barb. 16; State v. Moore, 19 Mo. 369; State v. Muir, 20 Mo. 303; State, to use, v. Farmer, 21 Mo. 160; Walden v. Davison, 15 Wend. 575; Woodman v. Howell, 45 Ill. 367; Phillips v. City, 39 Ill. 83; State v. Woodward, 50 N. H. 527; Knowlton v. Bartlett, 1 Pick. (Mass.) 270; Swart v. Hutton, 2 Nev. & M. 426; Goetz v. Ambs, 27 Mo. 28; Calvert v. Alexandria, 33 Mo. 149; Devlin v. Clark, 31 Mo. 22; Brady v. Connelly, 52 Mo. 19; Matlock v. Williams, 59 Mo. 105; State v. Hamilton, 55 Mo. 520; Loyd v. Hannibal & St. Jo. R. R. Co., 53 Mo. 509.

GANTT, P. J., delivered the opinion of the court.

Gehring sued Claudius and his sureties on a constable's bond. The charge was that one of the deputies of Claudius had committed a trespass on the plaintiff. This was done in the absence of Claudius, but his deputy entered into the premises of plaintiff under color of legal process addressed to his principal.

The answer denied the petition. The cause was tried in January, 1875, and there was a verdict for plaintiff, with $500 damages.

By the bill of exceptions it appeared that, when the jury was impaneled, the plaintiff's counsel questioned each of them touching his acquaintance with the parties to the suit, and the cause of action, which he stated to be an alleged unlawful arrest made by one Greenwald, deputy constable of Claudius, the other defendants being sureties of Claudius. After the jurors had answered to these questions, the counsel for defendants arose and began to address the jury as follows: “Gentlemen of the jury, this is a case where a deputy constable named Greenwald was going to serve a subpœna on the wife of plaintiff.” At this point the plaintiff's counsel objected to the defendant stating his case at that stage of the proceedings. The court sustained the objection, and defendants excepted thereto at the time. The court directed the following questions to be put to the jury:

1. Do any of you know the parties to this case?

2. Do any of you know anything of this suit, which is brought for an alleged unlawful arrest of plaintiff by a deputy constable?

3. Has any one talked to you about this case since you were summoned as jurors?

To which some of the jurors replied that they knew some of the defendants, and the rest knew none of the parties. They all replied that they knew nothing of the suit, or the circumstances out of which it grew. The plaintiff then exercised his right of peremptory challenge, as did the defendants also, and the remaining twelve were sworn.

The plaintiff testified that on November 22, 1872, he was sitting in his breakfast-room reading a newspaper. His wife was at market. A man knocked at the door. Witness opened it and the man asked if Miss Cary was there. Witness said no such person was there. Then he gave a different name, but not witness'. Witness told him his name was Gehring, but no one named Cary was there, and asked the man what he wanted. He replied he wanted Miss Cary. Witness asked him his business, and he replied it was none of witness' business. Witness replied that if that was so he did not want him any longer in his house. Instead of going, he came into the room and walked towards the kitchen. Witness repeated: “I tell you to go out, if you will not tell your business or your name.” He repeated it was none of witness' business. He showed no authority, badge, or paper, and witness took hold of him. He then showed his badge, which was covered by his overcoat. Witness said: “Why didn't you show me that before?” He replied: “Now I will arrest you.” Thereupon he took hold of witness, and called to a man outside, who came into the room with an open knife in his hand. They took witness and carried him, without his hat or coat, to a justice's office, when his child brought his hat to him. Greenwald (the trespasser) took it out of her hands and threw it away. They swore out a warrant against witness, who, after some delay, gave bond and was released.

On cross-examination he said he lived on the east side of Carondelet avenue. The man who arrested him did not say he was a constable until he showed his star. Witness told him his wife was not at home; then witness asked who and what he was; he replied: “I will show you what I am.”

Greenwald, called for plaintiff, testified that he went to 406 Soulard street, to serve a subpœna on Hannah Gehring. He rapped at the street door and got no answer; then went to the back door. Gehring came to the door and asked what Greenwald wanted; he replied by asking if a party named Gehring lived there; he said no. Greenwald walked in and said he had a subpœna, and produced it, and told Gehring he wanted to summon the witnesses. He said his name was Gehring; Greenwald said he wanted Mrs. Gehring, and did not want him. He said: ““You just go out;” witness replied that he would go as soon as he satisfied himself that Mrs. Gehring was not there. With that he stepped towards the kitchen, and Gehring took hold of him and scratched his neck and tore his shirt, whereupon Greenwald showed his star and arrested him with the aid of his partner. This witness told an altohgether different story about the hat, and the walk to the justice's office. He said that Gehring was very much excited and very violent.

On the part of defendants, the subpœnas were put in evidence and Claudius was sworn, who testified that Greenwald was his deputy, but he knew nothing of this transaction until after it had occurred. This was all the evidence.

The court gave the following instructions:

1. “The jury is instructed that, if they find for the plaintiff, they will assess the damages at a sum sufficient to fully compensate him for all the injuries sustained by him directly by the acts complained of, in which they may properly consider the mental pain and suffering he may naturally have sustained by reason of the arrest complained of.”

2. “The jury is instructed that the deputy constable, in attempting to serve a subpœna, has no right to forcibly enter a private house, against the will of the occupant, and that a resistance of any attempt to make such entry against the will of such occupant is perfectly justifiable in law.”

3. “The jury are instructed that the defendants in this action are liable for all acts of Greenwald done under color of his position as deputy constable, and are answerable for any trespass committed by him under pretense of his authority as such deputy constable, the same as though such acts or trespass were committed by Claudius, the defendant, himself.”

4. “If the jury believe from the evidence that Greenwald entered the private room of Gehring while the same was in the peaceable possession of said Gehring, and without the invitation or permission of said Gehring, and then refused to leave said room when ordered or requested so to do by said Gehring, then said Gehring had a right to eject him (Greenwald) from said room, using no more force than was actually necessary for that purpose.”

To the giving of these, defendants excepted.

The court also gave the following, at the request of defendants:

“The court instructs the...

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12 cases
  • State ex rel. Kaercher v. Roth, 30050.
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    • United States State Supreme Court of Missouri
    • April 8, 1932
    ...in the city of St. Louis, said acts having been done under color of office. State ex rel. Russell v. Moore, 19 Mo. 371; State ex rel. Gehring v. Claudius, 1 Mo. App. 551; State ex rel. Central Type, etc., Co. v. Moore, 72 Mo. 285; State ex rel. O'Donnell v. Boepple, 198 Mo. App. 63, 198 S.W......
  • McGowan v. Wells
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    ...of the court; his consent being practically extorted in such case"—citing Brownlee v. Hewitt, 1 Mo. App. 360. See, also, State v. Claudius, 1 Mo. App. 551. This quotation is directly in point. The difference between the cases in the excerpt and the case made by this record is that in the ex......
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    ...the case from the jury. Kull v. Ford Motor Co., 261 S.W. 736; Neff v. City of Cameron, 213 Mo. 350, 18 L.R.A. (N.S.) 320; State ex rel. v. Claudius, 1 Mo. App. 551; Williams v. Taxicab Co., 241 S.W. 970. Wilbur C. Schwartz and N. Murry Edwards for respondent. (1) A case was made under the h......
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