Hynes v. Jungren , 8 Kan. 391 ( 1871 )

Tbe opinion of tbe court was delivered by

Brewer, J.:

Jungren sued Hynes and McCleary for false

imprisonment, and recovered a judgment of $550. Tbe imprisonment was an arrest in a civil action for debt, made by McCleary as constable. In such action Hynes and one Stewart were plaintiffs, and Jungren defendant. Hynes was present and assisted tbe constable in making tbe arrest and conveying Jungren to jail. Several errors are alleged, of which tbe more important are these:

i EviaenceImproper answer. A Mrs. Johnson having testified that plaintiff, since the imprisonment, bad been sick a good deal and unable to work, was ashed this question: “ Do you know tbe reason why he could not work ? ” Tbis question was objected to, and tbe objection overruled. Tbe ground oí tbe objection is not stated, and we see no sufficient ground for any. No exception is preserved in tbe record to tbis ruling. Tbe witness answered that “plaintiff was sick and bad soreness in tbe breast.” Tbe record then states that “tbe answer was received in tbe case, and tbe defendants excepted to tbe ruling of tbe court allowing tbis answer to be taken in evidence.” The question being properly put to tlie witness, lier answer was evidence, and entitled to' remain, unless a motion to strike it ont was made. None such appears in the record. Even if the question was properly before us it seems doubtful whether the answer was objectionable, or, if objectionable, of sufficient importance to disturb the judgment. This is the only error claimed by counsel for plaintiff in error in regard to the reception or rejection of testimony. The other errors complained of are in the instructions of the court and the amount of the verdict.

s. officer; duty process. The judge charged the jury that the original process in the hands of the constable justified him in making the arrest and obeying its commands. This to say the least was as favorable to plaintiffs as the facts would permit, inasmuch as the affidavit, a copy of which goes with the order of arrest, failed to show any reasons for a belief that Jungren fraudrtlently concealed property, or was about to abscond with intent to defraud his creditors. The order of arrest commanded the constable to arrest Jungren and bring him forthwith before the justice. Instead of so doing he, in conjunction with Hynes, carried him to the county jail, and kept him there for a part of a day before taking him to the justice. The excuse which they attempted to make on the trial in the district court was, that Jungren was intoxicated. In reference to this the learned judge charged the jury as follows: “This if true would be no justification to disobey the command of the writ and incarcerate the plaintiff in jail, and keep him there excluded from counsel and friends.” This we think is correct. It was the duty of the constable to take his prisoner forthwith before the justice; and if the latter found him to be in such a condition as not to be able to protect his rights in court, he cotdd make such order for his safe keeping, and for a postponement of the case, as should be right and proper. Counsel for plaintiffs in error object to the last clause in the instruction just quoted, and say there was no testimony tending to show that any friends or counsel of Jungren were prevented from seeing him while in jail. We understand the language of the court as referring to the necessary result of incarceration rather than to any effort to prevent the visits of counsel and friends. That amounts to an exclusion from friends, since communication with them is not at the will of the prisoner, but by permission of his jailor.

3. Trespass; agent. ’ It appeared further in evidence that after judgment before the justice, the constable without any process, and upon simply a verbal order of the justice, took J ungren and shut him up in j ail, from which he was discharged upon habeas corpus. In reference to this, after instructing that detention by the constable was illegal, the court further charged the jury, “that if MeCleary acted willfully and maliciously in the arrest and .imprisonment of plaintiff, on a verbal order obtained by plaintiff or his attorney, after judgment rendered by the justice, Hynes would be liable also for such willful and malicious conduct of MeCleary, acting as his agent.” We think this instruction is correct. The question is not presented as to whether the principal is responsible where his agent, employed to do a lawful act, transcends such employment and does a willful and malicious wrong. Eor here the act which the principal procures the agent to do is illegal, and whether the agent acted innocently or maliciously the principal is responsible for the injury.

i. Where the ioSpiete no presumed. A very similar instruction was given in regard to Hynes’ responsibility for the act of his attorney, but it is unnecessary to consider whether that instruction embodies a correct statement of the law, for it is entirely ina¡iplicable to the case as shown by the record. True, the record does not affirm that all the testimony, or indeed that all the instructions, are preserved, and. there may have been testimony which called for an instruction in reference to the willful and malicious conduct of the attorney. But we can presume nothing, conjecture nothing. It is enough for us that none is disclosed. Nor can we see, even though the instruction be incorrect as an abstract statement of law, how it could have prejudiced the plaintiffs in error. Again, it is objected that the verdict is excessive. It does seem to us, upon the facts as presented, to be unreasonably large; but there may have been other testimony tending to show a more aggravated ease, and one which would require even a larger verdict than the one rendered. Other errors are complained of, but we deem it unnecessary to notice them. Judgment affirmed.

All the Justices concurring.