Whittaker v. Sandford

• Decision Date: 20 December 1912
• Citation: 110 Me. 77,85 A. 399
• Parties: WHITTAKER v. SANDFORD.
• Court: Maine Supreme Court

85 A. 399

110 Me. 77

WHITTAKER

v. SANDFORD.

Supreme Judicial Court of Maine.

Dec. 20, 1912.

Exceptions and Motion from Supreme Judicial Court, Cumberland County, at Law.

Action by Florence W. Whittaker against Frank W. Sandford. There was a verdict for plaintiff, and defendant brings exceptions and moves for a new trial. Exceptions overruled, and motion conditionally overruled.

Argued before SAVAGE, SPEAR, CORNISH, KING, and HALEY, JJ.

Connellan & Connellan, of Portland, for plaintiff.

H. E. Coolidge, of Lisbon Falls, and Oakes, Pulsifer & Ludden, of Auburn, for defendant.

SAVAGE, J. Action for false imprisonment. The plaintiff recovered a verdict for $1,100. The case comes up on defendant's exceptions and motion for a new trial.

The case shows that for several years prior to 1910, at a locality called "Shiloh," in Durham, in this state, there had been gathered together a religious sect, of which the defendant was at least the religious leader. They dwelt in a so-called colony. There was a similar colony under the same religious leadership at Jaffa, in Syria. The plaintiff was a member of this sect, and her husband was one of its ministers. For the promotion of the work of the "movement," as it is called, a Yacht Club was incorporated, of which the defendant was president. The Yacht Club owned two sailing yachts, the "Kingdom" and the "Coronet." So far as this case is concerned, these yachts were employed in transporting members of the movement, back and forth, between the coast of Maine and Jaffa.

The plaintiff, with her four children, sailed on the Coronet to Jaffa in 1905. Her husband was in Jerusalem, but came to Jaffa, and there remained until he sailed, a year later, apparently to America. The plaintiff lived in Jerusalem and Jaffa, as a member of the colony, until March, 1909. At that time she decided to abandon the movement, and from that time on ceased to take part in its exercise or to be recognized as a member. She made her preparations to return to America by steamer, but did not obtain the necessary funds therefor until December 24, 1909. At that time the Kingdom was in the harbor at Jaffa, and the defendant was on board. On Christmas day he sent a messenger to ask the plaintiff to come on board. She went, first being assured by the messenger that she should be returned to shore. The defendant expressed a strong desire that she should come back to America on the Kingdom, rather than in a steamer, saying, as she says, that he could not bear the sting of having her come home by steamer; he having taken her out. The plaintiff fearing, as she says, that if she came on board the defendant's yacht she would not be let off until she was "won to the movement" again, discussed that subject with the defendant, and he assured her repeatedly that under no circumstances would she be detained on board the vessel after they got into port, and that she should be free to do what she wanted to the moment they reached shore. Relying upon this promise, she boarded the Kingdom on December 28th and sailed for America. She was treated as a guest, and with all respect. She had her four children with her. The defendant was also on board.

The Kingdom arrived in Portland Harbor on the afternoon of Sunday, May. 8, 1910. The plaintiff's husband, who was at Shiloh, was telephoned to by some one, and went at once to Portland Harbor, reaching the yacht about midnight of the same day. The Coronet was also in Portland Harbor at that time. Later both yachts sailed to South Freeport, reaching there Tuesday morning, May 10th. From this time until June 6th following the plaintiff claims that she was prevented from leaving the Kingdom, by the defendant, in such manner as to constitute false imprisonment.

The Exceptions.

1. The first exception relied upon related to the admissibility of the record of habeas corpus proceedings, by virtue of which the plaintiff was removed from the Kingdom by a sheriff on June 6th, and under which she was discharged later. This record was admitted subject to the defendant's objection and exception. Further, the presiding justice was requested to Instruct the jury that the habeas corpus proceedings were inadmissible and must be entirely disregarded by them. The presiding justice declined to give the requested instruction, saying: "I have said all that I desire in regard to the habeas corpus. You have the right to consider the fact as bearing on the conduct of the plaintiff and the situation under which she had applied for it" The presiding justice in his charge had already said: "It is my duty to say to you that that (the discharge of the plaintiff on habeas corpus) is not a judicial determination of the question involved here. The defendant would not be bound by that adjudication of a single justice under the circumstances of this case; there being no notice to him, and he having no opportunity to be heard upon it. You have a right, I say to you, for the purposes of this trial, to consider the fact that she did resort to this petition of habeas corpus to obtain her release as bearing upon the testimony and all the circumstances surrounding her at that time as tending to show that she was restrained of her liberty." To this refusal to instruct, the defendant took an exception. These exceptions will be considered together.

The case shows that on June 4, 1910, application was made to a justice of this court for a writ of habeas corpus to take, and bring the court, the plaintiff and her four minor children, who it was alleged were restrained of their liberty on a certain yacht named Kingdom by the defendant, or by the captain or commanding officer of said Kingdom, or by the person or persons in charge of said Kingdom. The application was made by one Harriman, under the provisions of R. S. c. 101, § 4, which provides that application may be made "by any person." The justice ordered "writ to issue as prayed for, returnable before me at the courthouse in Auburn, and to be heard on Wednesday, June 8, 1910, 2 p. m." The form prescribed by statute for such a writ contains the following direction to the officer: "And summon the said A. B. (the person alleged to be holding the party in restraint) then and there to appear before our said court, to show cause for taking and detaining said C. D. (the party restrained)." R. S. c. 101, § 18. The order for the writ to issue therefore necessarily embraced the direction in the writ to the officer to "summon the defendant." No further order of notice was necessary. But in the writ, as issued by the clerk, the clause commanding the officer to "summon" the defendant was omitted. The officer took the writ and proceeded to the Kingdom, then lying about three miles off shore. He exhibited the writ to the plaintiff's husband, to whom, it is now claimed by the defendant, he had committed the care of, and responsibility for, the plaintiff. Mr. Whittaker read it. The commanding officer asked to take the writ, in order that the stenographer could make a copy of it. This request was complied with. But no service of the writ was made on either the defendant or the commanding officer. The defendant himself was not then on board the Kingdom, but was on the Coronet, lying not far away. The officer took the plaintiff and children, and carried them before the justice, who after hearing discharged them. The defendant did not attend the hearing. But Mr. Whittaker, the plaintiff's husband, went to Auburn, and was in the courthouse when the hearing was had, but did not go into the room where it was being held.

It is not necessary now to consider the propriety or legality of the discharge, in the absence of notice to the defendant. The presiding justice correctly instructed the jury that it was not a judicial determination of the question involved in this case, which was whether the defendant had wrongfully restrained the plaintiff of her liberty. He expressly instructed the jury also that the defendant was not bound by the adjudication. In considering the exception we must assume that the jury heeded the instruction. Limited in its application as it was by the presiding justice, we think the record was admissible. In the first place, it was proper for the plaintiff to show when and how she obtained her liberty. It is so closely connected with the question of restraint as to be practically inseparable. It was a part of the history of the transaction, the concluding part. Besides, the pith of the proposition lies, not in the discharge, concerning the effect of which the jury were instructed favorably to the defendant, but in the fact that the situation was such that resort was had to habeas corpus. It was a part of the conduct of the parties. It had a tendency to show an improbability that the plaintiff was free to leave the yacht when she should choose. The probative force of it was well stated by the presiding justice in his charge, in stating the differing contentions of the parties. "It is argued on the part of the plaintiff," he said, "that it is unreasonable and improbable to assert that she was not restrained of her liberty when you find her resorting to a writ of habeas corpus; that if she could have had at any time a boat to go on shore and be taken on shore, that she would not in all human probability have resorted to, or even acquiesced in, the resort of any of her friends to a writ of habeas corpus, for there was no necessity for it." We think the argument is not devoid of merit. How much weight should be given to it was for the jury to say. It will be noticed that this evidence, as the case was submitted by the court to the Jury, was applied to the question of restraint of liberty by some one, and not to the responsibility of the defendant for it. We think the rulings were right.

2. The plaintiff claimed and testified that on two or three occasions the defendant personally refused to furnish her with a boat so that she could leave the Kingdom; that when she wanted...