Thompson v. Burnett

• Citation: 167 Okla. 62,27 P.2d 1053,1933 OK 682
• Decision Date: 19 December 1933
• Docket Number: Case Number: 21282
• Court: Supreme Court of Oklahoma
• Parties: THOMPSON v. BURNETT et al.

1933 OK 682

27 P.2d 1053

167 Okla. 62

THOMPSON v. BURNETT et al.

Case Number: 21282

Supreme Court of Oklahoma

Decided: December 19, 1933

Syllabus

¶0 Appeal and Error--Review--Conclusiveness of Verdict Supported by Competent Evidence.

Where there is competent evidence introduced at the trial reasonably tending to support the verdict of the jury, and no prejudicial errors of law are shown in the instructions of the court, or its ruling upon the law questions presented during the trial, the verdict and finding of the jury is conclusive upon appeal to the Supreme Court.

Appeal from District Court, Okmulgee County; E. A. Summers, Assigned Judge.

Action by T. Guy Burnett against Orvel Thompson. Judgment for plaintiff, and defendant appeals. Affirmed.

L. L. Cowley, for plaintiff in error.

James M. Hays, Jr., for defendant in error.

WELCH, J.

¶1 In the trial court T. Guy Burnett, as plaintiff, sued the defendant, Orvel Thompson, for damages for false arrest and false imprisonment.

¶2 The action grew out of the following circumstances: The defendant, who was chief of police of the city of Okmulgee, without a warrant, arrested the plaintiff and imprisoned him for several hours "for investigation." Denied plaintiff the right to see his attorney whom he called to the jail, and accorded plaintiff no opportunity to be granted bail. Some three or four hours later, after satisfying himself that no crime had been committed, the defendant released the plaintiff. No information nor complaint was ever filed in any court charging the plaintiff with any violation of the law. Nor was any warrant ever issued for his arrest, nor any commitment for his imprisonment.

¶3 In the trial court the jury verdict was for the plaintiff for damages in the sum of $ 50. Judgment was rendered thereon, and the defendant appealed.

¶4 The defendant now insists that the verdict is not supported by the evidence, and that he had lawful authority to so arrest and imprison plaintiff under section 2471, C. O. S. 1921, section 2780, O. S. 1931, which provides, in substance, in subdivision 4, that a peace officer may, without a warrant, arrest a person "on a charge, made upon reasonable cause, of the commission of a felony by the party arrested." It must be noted, however, that this statutory authority to make an arrest does not in any manner deprive the arrested person of his right to confer with his counsel, and his right to be taken before a magistrate without unnecessary delay, and his right to be permitted to give bail bond in all cases except those in which the charge is a capital offense.

¶5 This theory of the defendant, with the evidence offered to support it, was submitted to the jury. The evidence was not at all clear as to what, if any, felony was said to have been committed by the plaintiff. There is some evidence from which it may be inferred that the defendant in making the arrest only anticipated that his investigation following the arrest would or might disclose the commission of a misdemeanor and not a felony. There is grave doubt under all the evidence whether any statement was ever made to the defendant embodying any charge whatever of the commission of a felony by the plaintiff. The arrest occurred at the hotel rooms where plaintiff lived, about ten or eleven o'clock in the morning. Plaintiff's employment required him to work nights and he was at home when the defendant went there admittedly to investigate as to a dispute that had just occurred between plaintiff and another man in reference to an overcoat and the loan of a few dollars in money.

¶6 After the jury was impaneled the defendant was permitted to amend his answer by adding the words "and that the plaintiff committed the same." This was permitted over plaintiff's objection. He had theretofore attacked the sufficiency of the answer to state a defense which had been overruled. The answer was so amended in order to permit the defendant to make the defense that, at the time he arrested the plaintiff, he thought, in good faith, that a felony had been committed by the plaintiff. It was the defendant's contention in the trial that he did not arrest the plaintiff for his dispute with the other man, but that he arrested him suspecting that he had been guilty of misconduct with a person or persons of the opposite sex. There were present in his rooms with the plaintiff on that morning a woman and her two daughters, aged 19 and 13, none of whom were related to the plaintiff. As to why they were there the plaintiff contended they were employed to aid him in the details of work incident to housekeeping, while the defendant assumed and contended they were there for evil purposes, and, as justifying his claim that he arrested plaintiff on the theory that a felony had been committed and he thought plaintiff had committed it, the defendant contended, upon trial, that he thought the plaintiff had been guilty of criminal and felonious misconduct with the youngest girl. The defendant offered testimony and evidence to support his contention of good faith in this regard which was submitted to the jury. Upon the contrary theory the plaintiff offered his evidence.

¶7 From the general verdict in favor of plaintiff it is clear that the jury accepted the theory of the plaintiff. There is nothing whatever to indicate any unfairness in the trial, or that the verdict was rendered under the influence of any passion or prejudice. That being true, we could not reverse the judgment for lack of evidence, unless we could say there was no competent evidence to support the verdict. It is earnestly urged here that the evidence of defendant was of the greater weight; that the evidence of the plaintiff was unworthy of belief and unreasonable, while the defendant's evidence was wholly reasonable and was worthy of belief. These were all questions for the jury to determine. Defendant's counsel is both earnest and diligent here, and undoubtedly these questions were forcibly presented to the jury in the trial court. That jury found against the defendant, and such determination is binding on this court as to all disputed facts.

¶8 The verdict in this case was a general verdict in favor of the plaintiff. The same rule applies to a general jury verdict as to a general finding of the court in a cause properly triable to a jury in which a jury is waived.

"Where a jury is waived and the case is tried to the court, and the finding of the court is general, such finding is a finding of every substantial thing necessary to sustain the general finding, and such finding, when reasonably supported by the evidence in the case, is conclusive upon the Supreme Court upon all doubtful and disputed questions of fact so found." Nations et ux. v. Stone, 92 Okla. 18, 217 P. 1031.

¶9 The introduction of competent conflicting testimony in the trial of a cause, or evidence from which reasonably prudent men may arrive at different conclusions, creates an issue of fact for submission to the jury," and,

"If there is any testimony that reasonably tends to support the verdict of the jury, it will not be reversed on appeal." Missouri Pacific Ry. Co. v. Horn, 92 Okla. 148, 218 P. 689.

"The jury are the triers of the facts, and where the evidence reasonably tends to support their verdict, same will not be disturbed by this court on appeal." Shields v. Mitchell, 92 Okla. 135, 218 P. 696.

"Where there is evidence in the record tending to support the verdict of the jury and the judgment rendered thereon, such verdict and judgment will not be disturbed on appeal." Yantis v. Tate, 92 Okla. 209, 218 P. 810.

"Where a case is tried to a jury, they are the triers of the facts, and where there is conflicting evidence, it is not the province of the appellate court to weigh the evidence." Key v. Hill, 93 Okla. 64, 219 P. 308.

¶10 The defendant urges error in the overruling of his motion for judgment on the pleadings, because there was new matter in the answer to which no reply had been filed. After the trial jury had been impaneled, the defendant obtained permission and amended his answer by pleading new matter. He then presented his motion for judgment on the pleadings, because there was no reply. Thereupon, the court permitted the plaintiff to file a general denial of the new matter as a reply and the trial proceeded. It was within the discretion of the trial judge, in the furtherance of justice, to permit the defendant to amend his answer and to permit the plaintiff to file reply. The record does not indicate the slightest abuse of discretion in this instance. See section 251, O. S. 1931, and cases there cited.

¶11 The defendant urges error in the overruling of his demurrer to plaintiff's evidence. Under the rule that the demurrer admitted the facts as then established by plaintiff's proof, that demurrer was properly overruled, as the plaintiff's evidence, if true, establishes his cause of action as alleged. Such demurrer should not be sustained in any case unless it appears that the evidence of plaintiff, and all reasonable inferences that may be drawn therefrom, if true, would be insufficient to sustain a verdict for plaintiff.

"A demurrer to the evidence admits all the facts which the evidence in the slightest degree tends to prove, and all the inferences and conclusions which may be reasonably and logically drawn from the evidence, and upon demurrer to the evidence the plaintiff is entitled to every inference which the evidence, considered in the light most favorable to him, reasonably tends to prove." Calhoma Oil Syndicate v. Atlas Supply Co., 117 Okla. 6, 244 P. 770; Eagle Loan & Inv. Co. v. Starks, 116 Okla. 149, 243 P. 723; Tidal Refining Co. v. Charles E. Knox Oil Co., 116 Okla. 1, 243 P. 150; Armstrong v. City of Tulsa, 102 Okla. 49, 226 P. 560; Beggs Oil Co. v. Deardorf, 97 Okla. 33, 222 P. 535.

"Where, in a suit at law, defendant, at the close of plaintiff's evidence, demurs to the evidence, he thereby admits every fact which the evidence tends to prove and

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