Wyatt v. Baker
| Decision Date | 06 September 1930 |
| Docket Number | 20035. |
| Citation | 154 S.E. 816,41 Ga.App. 750 |
| Parties | WYATT v. BAKER. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Mayor's act in issuing commitment after defendant paid fine and costs held ministerial, and did not entitle mayor to exemption from liability for false imprisonment; finding that commitment by mayor in suit for false imprisonment was defective and that mayor acted in bad faith held authorized by evidence; recovery for false imprisonment against mayor issuing commitment against defendant for nonpayment of fine and costs held authorized (Laws 1903, p. 588; Park's Ann. Civ. Code, § 855(w); Civ. Code 1910, § § 4447, 4448).
In this suit for a false arrest and imprisonment, the evidence warranted the inference that the defendant as mayor had passed a sentence upon the plaintiff requiring that he pay a fine and cost, or in lieu thereof be imprisoned for the period of twelve hours, and that, after the fine had been paid and the cost (if taxable) had been satisfied, the defendant with knowledge of these facts issued a commitment and caused the plaintiff to be imprisoned for the time specified in the sentence. Held:
(a) The act of the defendant in issuing such commitment was a ministerial one, and did not entitle him to claim exemption upon the ground that it was performed in the exercise of a judicial function.
(b) Under the evidence submitted, the jury were authorized to find that, as between the plaintiff and the defendant, the commitment was defective and that the defendant acted in bad faith.
(c) The evidence authorized the verdict for the plaintiff.
Charge that officer interested in costs of prosecution could give costs to defendant held proper in suit for false imprisonment (Laws 1903, p. 588; Park's Ann. Civ. Code, § 855(w).
The court's charge that "an officer interested in the costs in a prosecution may give his cost to a defendant, if he sees fit," was not subject to the exception that it was not adjusted to the evidence, and the excerpt did not otherwise constitute reversible error, as contended in the motion for a new trial.
Charge to consider worldly circumstances of parties in determining damages for false imprisonment held error; there being no evidence thereof.
There being no sufficient evidence as to the worldly circumstances of the parties, the judge erred in charging the jury upon that subject, and for this reason he should have granted a new trial.
Error from Superior Court, Chattooga County; James Maddox, Judge.
Suit by Howard Baker, by next friend, against O. D. Wyatt. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error.
Reversed.
C. D Rivers, of Summerville, and Maddox, Matthews & Owens, of Rome, for plaintiff in error.
Wright Wright & Covington, of Rome, and John D. & E. S. Taylor, of Summerville, for defendant in error.
Howard Baker, by next friend, brought suit against O. D. Wyatt to recover damages for an alleged false arrest and imprisonment. The jury found a verdict for the plaintiff in the sum of $500, and the defendant excepted to the overruling of his motion for a new trial. The motion contained the usual general grounds, and also assigned error on certain portions of the court's charge. The petition alleged that the defendant Wyatt, as mayor of the town of Menlo, imposed upon the plaintiff Baker a fine of $1 and cost of $1, for violation of a municipal ordinance; that such fine and cost were paid by the plaintiff to the proper officials of the town, but that, notwithstanding thisfact and the defendant's knowledge thereof, the defendant caused the plaintiff to be arrested and incarcerated in the common jail of Chattooga county, all of which the defendant did willfully and maliciously, and without lawful warrant or probable cause. The defendant in his answer admitted that he had caused the plaintiff to be arrested and imprisoned, but alleged that while acting as mayor he had sentenced the plaintiff to pay a fine of $2, or in default thereof to serve twelve hours in the calaboose, and that, because the plaintiff had failed to pay the fine within the time allowed, and because the weather was cold and there was no way to heat the town calaboose, he had committed the plaintiff to the common jail of the county, in virtue of the power vested in him as mayor of the municipality. The defendant contended that he had acted in good faith in ordering the plaintiff to prison, that the commitment was in every way lawful and regular, and that he was not liable for any sum as damages.
It appears that the plaintiff pleaded guilty in the mayor's court, and that the offense with which he stood charged was committed during a Christmas season, and consisted of the shooting of fireworks contrary to ordinance. While the plaintiff and the defendant differed in their pleadings as to whether the sentence required the payment of a fine of $1 and cost of $1, or exacted simply a fine of $2, the jury under the evidence could have found in favor of the plaintiff's contention as to this matter.
The town of Menlo was incorporated in 1903 (Ga. Laws 1903, p. 588), and, under the act of incorporation, section 705 of the Political Code of 1895 (Park's Code, § 855(w), was made a part of the charter. In the trial of the present case, two ordinances were introduced in evidence--one prohibiting the shooting of firecrackers; the other having reference to punishment, and providing generally as follows: "The punishment for the violation of any of the ordinances of the town of Menlo shall be a fine not exceeding $100, or imprisonment in the calaboose not exceeding 30 days, or work on the street not longer than 30 days, or any part of either or all, in the discretion of the mayor."
It was not shown in the sentence, or in any ordinance introduced, for what officer or for what purpose the cost was assessed, but it appears that the town marshal presumed that the cost was intended for himself, and that immediately after sentence was pronounced he stated to the plaintiff (then the accused) that he would give him his (the marshal's) cost. The evidence also authorized the inference that the fine of $1 was paid for the plaintiff by his father, although its nonpayment was alleged and sought to be established by the defendant. In addition to this, the jury could have inferred from some of the evidence for the plaintiff that the defendant at the time of ordering the imprisonment had knowledge, both that the marshal had waived cost, and that the fine had been paid, not by the plaintiff, but by his father for him, and that the defendant was displeased because the plaintiff had not paid the fine in person. The plaintiff's trial before the defendant as mayor occurred on Saturday, and the order under which the plaintiff was arrested and incarcerated was issued by the defendant on the following Monday, and was directed to the jailer of Chattooga county. The jailer executed the order according to its terms by imprisoning the plaintiff for a period of twelve hours. Other facts are stated hereinafter.
1. We cannot agree that the verdict should be set aside as being contrary to the evidence or without evidence to support it. "False imprisonment consists in the unlawful detention of the person of another, for any length of time, whereby he is deprived of his personal liberty." Civil Code (1910), § 4447. The only elements essential to a cause of action being the detention and its unlawfulness, malice and want of probable cause need not be shown. Westberry v. Clanton, 136 Ga. 795 (3), 72 S.E. 238.
If the arrest and detention of the plaintiff were wrongful, the defendant may be held liable for having commanded the same to be done by the jailer, unless there is some ground upon which he may claim an exemption, as that he was a judicial officer. Wilder v. Gardner, 39 Ga.App. 608 (3), 147 S.E. 911. While the mayor of a municipality is not liable in damages for acts done in the exercise of the judicial function (Calhoun v. Little, 106 Ga. 336 (2), 32 S.E. 86, 89, 43 L.R.A. 630, 71 Am.St.Rep. 254), the act of the defendant in committing the plaintiff to jail in purported execution of the judgment previously imposed was purely ministerial, and was not one for which the defendant could claim the exemption which exists as to judicial acts. Nix v. Citizens' Bank, 35 Ga.App. 55, 132 S.E. 249; 25 C.J. 523; 23 Am. & Eng. Enc. Law (2d Ed.) 376. As to the functions of a justice of the peace, it has been held as follows: Fisher v. Deans, 107 Mass. 118. "The issuing of mesne and final process in civil actions and of a mittimus *** in criminal proceedings is a ministerial act." Banister v. Wakeman, 64 Vt. 203, 210, 23 A. 585, 587, 15 L.R.A. 201. See, also, La Roe v. Roeser, 8 Mich. 537; Danforth v. Classen, 21 Ill.App. 572 (2).
A ministerial act may be "defined to be one which a person performs in a given state of facts, in a prescribed manner in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act being done." But "the act is none the less ministerial, because the person performing it, may have to satisfy himself that the state of facts exists under which it is his right and duty to perform the act." Flournoy v. Jeffersonville, 17 Ind. 169, 174, 79 Am.Dec. 468. Cf. Scott v. Bedell, 108 Ga. 205 (2),...
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