Wolf v. Perryman

Decision Date03 November 1891
Citation17 S.W. 772
PartiesWOLF, Sheriff, <I>et al.</I> v. PERRYMAN.
CourtTexas Supreme Court

Action by Robert Perryman against John W. Wolf, R. W. Choate, and H. J. Duncan for false imprisonment. Verdict and judgment for plaintiff. Defendants appeal. Affirmed.

Fisher & Ward and J. G. Cook, for appellant Wolf. Walton, Hill & Walton, for appellee.


This was an action brought by Robert Perryman, appellee, against John Wolf, sheriff of Burnet county, R. W. Choate, sheriff of Cass county, and H. J. Duncan, deputy-sheriff of Cass county, appellants, for the recovery of $10,000 actual damages, and $20,000 punitory damages, for false imprisonment. The petition, in substance, alleges that appellants arrested appellee in Burnet county, and imprisoned him in jail, with thieves and murderers, for three days; that as an excuse for so doing they charged him with being a murderer; and that on the 31st day of January, 1888, they took him from the jail at Burnet, and conveyed him on the cars to the city of Austin, where, on the evening of the same day, they released him. Defendant Wolf answered, pleading his privilege to be sued in Burnet county, his place of residence; denying that he restrained appellee of his liberty in Travis county, but alleged that he arrested appellee in Burnet county upon a capias issued by the district court of Cass county commanding his arrest for the crime of murder; and in Burnet county he turned over appellee to appellant Duncan, who was deputy-sheriff of Cass county, and from that time on he was in no manner connected with the imprisonment of appellee. Appellant Wolf further pleaded general denial, and justified the arrest by virtue of said capias, and that appellant brought about his arrest by his repeated statements that he had killed a negro. The case was tried before a jury, resulting in a judgment for appellee against appellants for the sum of $1,500, as actual damages. The court did not submit the issue of punitory damages. Appellants Choate and Duncan also pleaded the general issue, and sought to justify the arrest under a capias from the district court of Cass county against one Robert Perryman for murder. They further alleged that the arrest of the plaintiff, as well as his detention, was due to his own voluntary conduct and declarations, superinducing the same, and that they detained him in custody no longer than was reasonably necessary to investigate his identity. They further pleaded, in mitigation of the damages claimed for the injury to his character or reputation, that he had already, by his declarations, acquired the reputation of being a murderer, etc. The court, in a charge characterized by acute discriminations, very clearly submitted to the jury every one of the issues which could be said to have been presented by the evidence as adduced.

1. The first question as presented by the appellants arises under the second assignment of error. It is claimed that "the court erred in limiting the challenges of all of the defendants, of jurors, to six (6) jurors, when the interests of defendants Choate and Duncan were different from the interests of defendant Wolf, as shown by the pleadings." We do not find any such antagonism of interests between the defendants, when we consider the mode in which the case was tried and presented below, as would warrant the inference that the court below abused its discretion, or that each defendant was entitled to six peremptory challenges. Jones v. Ford, 60 Tex. 127; Railway Co. v. Terrell, 69 Tex. 650, 7 S. W. Rep. 670. It is contended that, if Wolf's plea in abatement had been sustained, the whole burden would then have fallen upon the other defendants; hence a diversity of interests, etc. The other defendants, however, did not oppose nor contest this plea of Wolf, nor raise any issue with him. Besides, it will appear, as we proceed, that under no phase of the case, as submitted by the court to the jury, could they find for the defendant Wolf without also finding for the other defendants. We are not, therefore, required to determine whether, if Wolf had been dismissed and the others mulcted in damages, they could have sued him for contribution. Cooley, Torts, pp. 146-148.

But again, the bill of exceptions shows that the defendants named demanded the right to exercise six challenges for Wolf, and six for Choate and Duncan, and that but six were allowed to all, and that, after these had been exhausted, "two jurors were placed in the panel," but the bill fails to show that any of the defendants "desired to challenge" either of these jurors. No injury to the defendants is therefore made to appear, and the ruling becomes "immaterial." Snow v. Starr, 75 Tex. 414, 12 S. W. Rep. 673.

2. The 3d, 4th, and 5th assignments of error have been consolidated in appellants' brief, and will appear from the propositions submitted thereunder. The two propositions will be considered together, in connection with such statements from the record as may be necessary to elucidate them. First proposition under 3d, 4th, and 5th assignments of error as consolidated: "Appellant Wolf, as sheriff of Burnet county, having arrested appellee in said county, by virtue of a capias issued by the clerk of the district court of Cass county, commanding him to arrest Robert Perryman for the crime of murder, and having turned over said Perryman to the deputy-sheriff of Cass county, in Burnet county, together with said capias, with his return on the same, his custody of said Perryman then and there ceased, and the further imprisonment of said Perryman was the sole act of said sheriff of Cass county, for which appellant Wolf was in no manner responsible, and the court erred in its charge in submitting to the jury the liability of Wolf to be sued in Travis county." As the part of the charge here referred to is the chief portion, and determines, more or less, the force of several other assignments, we insert it in full, viz.: "(4) If defendant Wolf arrested plaintiff without a warrant, or if the warrant held by Wolf, when he arrested plaintiff, was not issued for the arrest of plaintiff, was unlawful and wrongful, and if Wolf, knowing or believing that Duncan had come to take plaintiff to Cass county, delivered him to Duncan, then the subsequent removal of plaintiff by Duncan to Travis county was a continuation of the unlawful act, and all defendants are liable therefor, unless the detention of plaintiff after his arrest was justifiable under the law hereafter given you in this charge. And if you find from the testimony that plaintiff was arrested without a warrant, or was not the person for whose arrest said warrant was issued, and that defendant Wolf, knowing or believing that defendant Duncan had come to take plaintiff to Cass county, delivered him to said Duncan, then you should return a verdict for plaintiff for the actual damage sustained by him, unless you find that, by reason of statements made by plaintiff and communicated to defendants Wolf and Duncan, Duncan, after hearing the statement of the witness Ray, and other statements made to them concerning the identity of plaintiff, Duncan was reasonably in doubt as to whether or not he was the person for whose arrest the warrant was issued, and that being so in doubt, and for the purpose of investigating further as to plaintiff's identity, said Duncan received and removed plaintiff to Austin, Travis county, and that such removal was, under the circumstances, a reasonable and proper mode of making such investigation, and that he detained plaintiff no longer than was necessary to make such investigation, then you should find for the defendants Choate and Duncan, and for defendant Wolf, on his plea in abatement, because if plaintiff's removal into Travis county was justifiable, then plaintiff cannot not recover in this court against defendant Wolf, even if he unlawfully arrested plaintiff." It is to be distinctly observed that the only objection made to this instruction which is contained in the statement made by appellant's counsel under the above proposition is that the court erred in submitting to the jury the liability of the defendant Wolf to be sued in Travis county, because, we presume, counsel contend that the undisputed facts render him only liable, if at all, in Burnet county for his acts performed there. If, therefore, there is evidence sufficient to have authorized the court below to submit to the jury his responsibility or not for the acts of Duncan committed in Travis county, the objection must fall to the ground.

Second proposition under the 3d, 4th, and 5th assignments of error, consolidated: "The court erred in refusing to give the following instruction asked by defendant Wolf: `If you believe from the evidence that the defendant Duncan acted on his own volition, without suggestion or advice from the defendant Wolf as to what he (Duncan) would do with the plaintiff when said Duncan received plaintiff from said Wolf, and that the defendants Duncan and Choate are not liable, then you will find for the defendant Wolf also, on his plea to the right to try his case in this county, even though you should think the defendant Wolf was liable for what he did in Burnet county; for this plaintiff would have to sue, if at all, in Burnet county.'" We have reached the conclusion that the general charge was correct and sufficient, under the facts proved, and that the above special instruction was correctly refused, and was inapplicable, and therefore not a proper direction to the jury in the shape it was drawn. To elucidate these conclusions, it becomes necessary to give a summary of the evidence relating to the subject. There is no conflict in the testimony bearing upon the issue of venue. It was proved and admitted by defendant Wolf that he arrested and imprisoned the plaintiff in Burnet county. He testified upon this...

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