Stephens v. Conley

• Decision Date: 06 January 1914
• Citation: 138 P. 189,48 Mont. 352
• Parties: STEPHENS v. CONLEY.
• Court: Montana Supreme Court

138 P. 189

48 Mont. 352

STEPHENS v. CONLEY.

Supreme Court of Montana

January 6, 1914

Appeal from District Court, Powell County; W. R. C. Stewart Presiding Judge.

Action by Oram Stephens against Frank Conley. Judgment for defendant, and plaintiff appeals. Affirmed in part and reversed in part.

Chas A. Wallace, of Butte, for appellant.

C. F Kelley and L. O. Evans, both of Butte, S. P. Wilson, of Deer Lodge, and Rodgers & Rodgers, of Anaconda, for respondent.

HOLLOWAY J.

The complaint attempts to set forth three causes of action for damages: (1) For assault and other personal indignities; (2) for false imprisonment; and (3) for malicious prosecution. Each charge arose out of transactions which occurred while plaintiff was imprisoned in the penitentiary, and while Conley was warden or contractor in charge of that institution.

After the cause was at issue and upon the trial, defendant objected to the introduction of evidence by the plaintiff, upon the ground that the complaint does not state a cause of action. This motion was sustained, and a judgment was entered dismissing the action and awarding defendant his costs. From that judgment plaintiff prosecuted this appeal.

Respondent has moved to dismiss the appeal upon the ground of insufficiency of the notice. The motion is overruled. The notice is informal, indefinite, and reaches the very limits of defensible ground. It refers to the order of the court sustaining defendant's motion to exclude evidence. Such an order is not appealable (section 7099, Rev. Codes); but from the notice it may be gathered that the plaintiff's purpose was to appeal from the judgment in this action made and entered on June 27, 1912, in favor of the defendant and against the plaintiff.

In support of the motion counsel refer to the decision of this court in State ex rel. Rosenstein v. District Court, 41 Mont. 100, 108 P. 580, 21 Ann. Cas. 1307; but in the later case of Valadon v. Lohman, 46 Mont. 144, 127 P. 88, we had occasion to review the Rosenstein Case and to differentiate it from the then instant case. In referring to the contents of a notice of appeal we said: "It must be deemed sufficient if upon its face the adverse party is given enough information to enable him to know what is required of him in order to protect his rights. This view not only permits, but requires, a reasonable construction of it in order that the appellant may not be defeated of his right for merely technical reasons. * * * The notice * * * contains the title of the cause, the date of the rendition of the judgment, the statement that it was rendered in favor of the plaintiff and against the defendant, and the title of the particular court that rendered it. The notice was sufficient."

The defects in the notice in this case are clearly the result of the misapprehension of counsel for appellant, as to what the judgment determined. They apparently confuse the order for judgment, with the judgment itself, or proceed upon the theory that the preliminary recitals in the judgment constitute an essential part of it. So long as the notice serves the purpose of apprising the respondent of the judgment which it is sought to have reviewed, it is sufficient. The giving of a notice is not an indispensable step in taking an appeal. It does not serve any higher purpose than a summons, and its entire absence can be waived. Jenkins v. Carroll, 42 Mont. 302, 112 P. 1064. This court is commanded by statute to give its judgment without regard to technical errors or defects which do not affect the substantial rights of the parties. We are forbidden to idolize matters of form at the expense of substance, or to pay tithes of mint and anise and cumin while omitting the weightier matters of law.

On the Merits.

First Cause of Action. The plaintiff complains that while he was duly imprisoned in the penitentiary, the defendant, as warden in charge of that institution, caused him to be (a) confined in a cell with an insane Italian, and (b) with a negro, (c) to be shackled, manacled, and placed in a dungeon and confined on a bread and water diet, and (d) assaulted, beaten, and wounded, his collar bone broken, and his head and chest cut and bruised.

(a) The complaint fails to allege that the Italian's insanity was known to the warden or to the guards or other prison officials, or that plaintiff ever made complaint or requested a change.

(b) While the plaintiff's refined sensibilities may have been shocked by his being compelled to share his cell with a negro, he fails to allege facts sufficient to state a cause of action for legal relief. Furthermore, the answer, while admitting the fact of plaintiff's confinement with the negro, alleges in justification that, on account of the crowded condition of the prison, it was necessary that some one be confined in the same cell with the negro, and this is not denied.

(c) All of plaintiff's allegations are predicated upon the premise that he was a convict, and that Conley was warden. The answer admits the facts that plaintiff was manacled, shackled, placed in a dungeon, and kept on a bread and water diet. It then sets forth in justification that the state prison board, pursuant to statutory authority, duly made and promulgated certain rules and regulations for the management of the penitentiary and the discipline of prisoners; that the punishments enumerated under this specific charge are species of punishments provided for by such rules, and that the infliction of the punishments upon the plaintiff was necessary to compel his submission to prison authority. The history of an incipient riot in the penitentiary is recited at length, and the part played by defendant is set forth. There is no denial of these facts, and, standing admitted, they amount to a complete justification, and defeat any right of recovery upon the part of the plaintiff, if any right he otherwise had.

(d) Standing alone, the assault upon the plaintiff, with the details of his injuries as depicted in this charge, seems cruel--almost barbarous--but plaintiff doubtless discreetly refrained from enlightening the court upon the surrounding circumstances. These, however, are fully supplied by the affirmative portion of the answer to this charge, which amounts, in legal effect, to a confession and avoidance, or, in other words, to a justification for whatever injuries were actually inflicted upon the plaintiff. The answer alleges that on March 8, 1908, this plaintiff, Geo. Rock, Wm. Hayes, and C. B. Young, all convicts in the penitentiary, entered into a conspiracy to escape from prison, and in pursuance of that purpose, and in the attempted execution of their plan, they murdered John Robinson, the deputy warden, and assaulted this defendant, the warden, with intent to kill and murder him, and did grievously wound him so that for many weeks thereafter he was nigh unto death; that this plaintiff, Stephens, actually participated in the murder of Robinson and the assault upon defendant; that thereafter Thos. McTague, co-contractor with this defendant in the management of the pentitentiary, and having equal authority with him to maintain order and discipline in the prison, after a complete investigation of the mutiny referred to, ordered Stephens confined to a dungeon, that Stephens was contumacious and violent, and assaulted the guards detailed to execute McTague's order, and that in the necessary defense of themselves and in subduing Stephens the guards inflicted whatever injuries plaintiff sustained. There is not any denial of these facts, and, standing alone, they constitute a justification for the acts of which complaint is made, assuming that the complaint states a cause of action in the particular instance now under consideration. For this reason alone the ruling of the trial court should be sustained; for it is now the rule, too well established in this state to be open to further controversy, that if the decision of the lower court was correct, it will not be disturbed even though it may have been prompted by an erroneous reason. Marron v. Great Northern Ry. Co., 46 Mont. 593, 129 P. 1055; Von Tobel v. City of Lewistown, 41 Mont. 226, 108 P. 910, 137 Am. St. Rep. 733; Menard v. Montana Central Ry. Co., 22 Mont. 340, 56 P. 592; Winnicott v. Orman, 39 Mont. 339, 102 P. 570.

But the trial court's ruling was correct upon the theory of its rendition, and the complaint does not state a cause of action. The warden of the penitentiary is a public officer, and in this instance he is sued as such, and for acts done by him in virtue of his office as warden. State ex rel. Stephens v. District Court, 43 Mont. 571, 118 P. 268, Ann. Cas. 1912C, 343. The presumption that official duty was regularly performed attaches to his acts (section 7962, subd. 15, Rev. Codes); and, since this pretended right of action arose while plaintiff was rightfully imprisoned, it was incumbent upon him, in order to put the warden in the wrong, to allege that his injuries did not result as the consequence of his wrongful or unlawful acts. In Wightman v. Brush, 10 N.Y.S. 76 ^[1], an action similar to the one before us, a demurrer was sustained to the complaint, and properly so according to the Supreme Court. In justification of that conclusion the court said: "There is no allegation in the complaint that the acts done by the defendants were not in accordance with the regulations of the superintendent, or that they were not necessary for the proper punishment of the plaintiff, or to secure submission and obedience upon his part." For the reason that this complaint does not negative the presumption attaching to the warden's official acts, it does not state a cause of action.

Second Cause of Action. "False imprisonment is the unlawful violation of the personal...