Tiede v. Fuhr
| Decision Date | 01 April 1915 |
| Citation | 175 S.W. 910,264 Mo. 622 |
| Parties | ALICE TIEDE, Appellant, v. O. C. FUHR et al |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.
Reversed and remanded.
Oscar B. Elam for appellant.
(1) False imprisonment is a mixed question or law and fact. Whether there has, in fact, been an imprisonment is a question of fact for the jury to determine. 5 Ency. of Ev p. 733. (2) In order to establish the offense of false imprisonment it is only necessary on behalf of the plaintiff to show the imprisonment. 5 Ency. of Ev., p. 733. And however honestly the mistake has been made in causing the arrest to be made, the procurer thereof is nevertheless liable. Bishop on Non-Contract Law, sec. 213. (3) The law presumes every imprisonment unlawful. Floyd v. State, 12 Ark. 43 54 Am. Dec. 250; Mitchell v. State, 12 Ark. 50, 54 Am. Dec. 253; People v. McGrew, 77 Cal. 570; Kirbie v. State, 5 Tex.App. 60. (4) The burden of proving the imprisonment lawful is upon him who asserts the imprisonment to be lawful. 5 Ency. of Ev., p. 734. (5) Malice is not a constituent element of the wrong of false imprisonment. Bishop on Non-Contract Law, sec. 212; Boeger v. Langenberg, 9 Mo. 396; 5 Ency. of Ev., p 733. (6) Want of probable cause is not a constituent element of the wrong of false imprisonment in making a prima-facie case. 5 Ency. of Ev., p. 733; Boeger v. Langenberg, 97 Mo. 396. (7) False imprisonment is any unlawful physical restraint by one of another's liberty, whether in prison or elsewhere, in a place stationary or moving, under claim of authority or not, by bolts and bars, by threats over-powering the will, or by any other means. Bishop on Non-Contract Law, sec. 206; Boeger v. Langenberg, 97 Mo. 396; Wehmyer v. Mulvihill, 150 Mo.App. 205. (8) Wrongful arrest is the most familiar illustration. If an officer or private person, assuming to act by command or permission of the law, detains one without its authorization in fact, whether believing himself to have the authority or not, he must answer to the arrested person for a false imprisonment. Bishop on Non-Contract Law, sec. 209. (9) One who procured the arrest, whether present or absent when it was made, is in like manner answerable. Bishop on Non-Contract Law, sec. 209. (10) In this country courts of law have no inherent power to direct the taking of depositions, their sole authority in that respect being conferred by constitutional provisions or statutes. 6 Ency. Pl. & Pr., p. 478; In re Nitsche, 14 Mo.App. 213. (11) The notice served upon plaintiff March 31, 1910, that depositions on part of defendant would be taken in the case March 4, 1910, was no notice at all. Range Co. v. Jeffers, 79 Mo.App. 178; In re Nitsche, 14 Mo.App. 213. (12) The service of notice of the time and place of taking the depositions is a condition precedent to the exercise of the right to take the depositions. R. S. 1909, sec. 6392. (13) All plaintiff was required to do to make her case on her count for malicious prosecution was to show that she was prosecuted by the defendants; that the prosecution terminated in her favor, and that it was malicious and without probable cause. Eckerle v. Higgins, 159 Mo.App. 183.
G. A. Watson, J. J. Gideon and W. P. Sullivan for respondents.
(1) The facts on which the action of the justice of the peace was based were all before him, files of his court, and neither the respondent Fuhr nor his attorney is answerable for his act. Warren v. Flood, 72 Mo.App. 205; Clark v. Thompson, 160 Mo. 461; Brucker v. Frederick, 109 Mo.App. 614; St. Louis v. Karr, 85 Mo.App. 615. (2) To sustain an action for malicious prosecution, malice and want of probable cause must co-exist. Pinson v. Campbell, 124 Mo.App. 260; Stubbs v. Mulholland, 168 Mo. 47. (3) To sustain an action for false arrest, bad faith must be shown. Daugherty v. Snyder, 97 Mo.App. 495; Fellows v. Goodman, 49 Mo. 62; Roth v. Shupp, 94 Md. 55. (4) An action for false imprisonment may not be maintained for an arrest which is lawful, no matter at whose instigation or from what motive the arrest was made. Bierworth v. Pieronnet, 65 Mo.App. 431; Weymeyer v. Mulvihill, 150 Mo.App. 197; Merchant v. Bothwell, 60 Mo.App. 341; Finley v. Refrigerator Co., 99 Mo. 559. (5) The attachment of Alice Tiede was lawful. R. S. 1909, sec. 6404. (6) She could not be the judge as to her duty to obey the subpoena. Shull v. Boyd, 251 Mo. 475.
BLAIR, J. Graves, P. J., concurs; Woodson, J., concurs except as to what is said concerning the case of Shull v. Boyd, 251 Mo. 475; Bond, J., dissents as to what is said concerning Fellows v. Goodman, 49 Mo. 62, and concurs in result only.
Plaintiff appeals from an order overruling her motion to set aside a nonsuit taken when the trial court sustained a demurrer to the evidence. The petition is in two counts, one for false imprisonment and one for malicious prosecution. Each count prays $ 20,000 as damages.
Plaintiff and defendant Fuhr are sister and brother, and in 1910 were involved in litigation in which defendant Sullivan was acting as Fuhr's counsel and appellant's present counsel represented her.
On March 31, 1910, depositions for plaintiff were being taken before H. A. Garbee, at Billings, in a case then pending in Christian county, instituted by Alice Tiede, the present appellant, against O. C. Fuhr, one of these respondents. On that date opposing counsel signed an agreement purporting to postpone the taking of such depositions until April 4, 1910. On the day the agreement was signed defendant, by his attorney, undertook to give notice to Alice Tiede for the taking of depositions on behalf of defendant in the same case and upon April 4, 1910, but before a different magistrate, E. F. Howcroft, and at an office in Billings different from that named in the agreement mentioned. The original notice which the constable returned to the justice named April 4, 1910, as the date for taking depositions for the defendant, but the copy of the notice actually delivered to Alice Tiede notified her that the depositions would be taken March 4, 1910. A subpoena to appear before Howcroft on April 4, 1910, was served upon Alice Tiede at the time the supposed copy of the notice was delivered to her. Soon thereafter she noted that the notice was for a day past. It appears that only Mrs. Tiede, her husband and her attorney knew of the error in the notice until she appeared before Howcroft in obedience to an attachment issued by him.
There is evidence that on April 4th counsel for Alice Tiede refused to agree to a division of the day for the taking of depositions before Garbee in her behalf as plaintiff and before Howcroft in behalf of defendant Fuhr, as suggested by defendant's then counsel and present codefendant Sullivan; that defendant's counsel then left the scene, and the taking, in behalf of plaintiff, of defendant Fuhr's deposition was resumed before Garbee; in a short time Fuhr, then on the witness stand undergoing examination by plaintiff's counsel, asked Justice Garbee to excuse him in order that he might consult his attorney, his present codefendant. Fuhr was absent fifteen or twenty minutes and then returned, and there is evidence he was heard to say to his wife: "She will have something else to think about now." This was a short time before the justice's attachment was served. One witness testified that just after the constable who served the attachment left with Alice Tiede in his custody, Fuhr, who was present when the arrest was made, "smiled and said that the fun had all been on one side, but it would be on the other side now." There was some testimony also that earlier in the day defendant Fuhr had attempted to procure the services of a stenographer to take the depositions before Howcroft, and on being told that the person applied to was engaged with the depositions before Garbee and could not appear before Howcroft at the same time, Fuhr said that "in that case Mr. Sullivan would have to make other arrangements."
The evidence tends to show that Justice Howcroft issued an attachment for Alice Tiede at defendant Sullivan's request and delivered it to the constable in his presence. In fact, the constable testified that "they" (Howcroft and Sullivan) delivered it to him. The constable proceeded to the hotel where Justice Garbee was sitting, and where defendant Fuhr was, and took Mrs. Tiede in custody and accompanied her to Howcroft's office. She was almost immediately discharged by the justice.
I. Whatever power a justice of the peace, taking depositions, possesses to command by sobpoena and compel by attachment the attendance of witnesses, is statutory. [Secs. 6404, 6367, R. S. 1909.]
In the absence of waiver and agreement of the parties, the statutory notice to take depositions (Secs. 6392, 6393, R. S. 1909) is an essential prerequisite to the vesting in the justice of authority to take depositions at all. In such case in the absence of authority to take depositions there can be no power to subpoena and attach witnesses whose depositions are desired.
In this case there was no service of notice to take depositions upon April 4, 1910. The copy delivered was for a day that was past and the service was void. The effect of the return of the constable was at most but prima-facie (Bowyer v Knapp, 15 W.Va. 277) and the rule (Smoot v. Judd, 184 Mo. 508, 83 S.W. 481) applicable to sheriffs' returns upon summons cannot be invoked. Assuming that such return is sufficient to protect the justice himself, in that his erroneous decision that he had jurisdiction of the person fell within the maxim that ignorance of fact excuses, yet defendants in this case are not within the protective scope of that maxim. They occupy a position somewhat...
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