Zimmerman v. Knox , 34 Kan. 245 ( 1885 )

The opinion of the court was delivered by

Johnston, J.:

This was an action for false imprisonment, in which the plaintiff sued to recover, as compensatory and exemplary damages, the sum of $10,000, and in the trial below obtained a verdict and judgment for $15. It appears that on February 23, 1882, F. P. Zimmerman, who before that time had been a resident of Topeka, Kansas, converted his property into money, and started with his family on a journey over the Atchison, Topeka & Santa Fé railroad to the state of California. At the time he left Topeka, John D. Knox held an unsettled demand against him for $128. After he had proceeded on his journey a distance of three hundred miles or more, and when the train stopped for a few minutes at Garden City — then in Ford county, Kansas — he was arrested by an officer of that county, at the instigation and under the telegraphic direction of the defendant, John D. Knox. At the time of the arrest the officer informed him that if he paid the $128, due to John D. Knox, and $20 of costs, he would release him. The plaintiff refused to pay the demand. He was then taken from the train by the officer who arrested him, and his family proceeded upon the journey without him. The officer took him into custody, and conveyed him back to the office of the sheriff at Dodge City, where he was held in custody for about twenty-four hours, when he effected his escape, and following his family he finally came up with them at Deming, New Mexico, where they had awaited his coming. It is not claimed that he was guilty of any public offense, and the officer held no warrant or process authorizing him to arrest or to detain Zimmerman. There had been no civil suit instituted against the plaintiff in the county of Ford, and no order of arrest had been issued in any civil action instituted by John D. Knox against the plaintiff in the county of Ford, or elsewhere. Notwithstanding this fact, the court iu its general charge instructed the jury at great length upon the law relating to the issuance of an order of arrest against the plaintiff in a civil action. The plaintiff insists that the instructions were irrelevant, misleading, and prejudicial to his interests. In the fifth instruction the court stated to the jury that—

“In a civil action a party may be arrested under certain circumstances: for instance, if you believe from the evidence that the plaintiff was, in February, 1882, indebted to JohnD. Knox, and that at, or about or just before his arrest, he was selling and disposing of his property for the purpose of leaving the state, without making any preparation or provision for paying his debt or securing or satisfying it in some way, and that he was doing these things under such circumstances as would lead a man of ordinary caution and prudence to fairly and honestly believe that he was selling and disposing of his property intending to leave the country and to avoid the payment of his debt — under such circumstances the defendant had the right to cause a warrant to be issued for the arrest and detention of the plaintiff in order to secure the payment of his debt. It is not alone in criminal cases that a man can be arrested, but there are circumstances under which a man can be arrested under process in civil actions — one of the character and description I have just given you. Now if you find this was the condition of affairs at the time of the departure of Zimmerman for California, and if you believe that he was acting in such a manner as would cause a man of ordinary prudence and caution to fairly and honestly believe that he was selling his property for the purpose of abandoning the country, and for the purpose of avoiding the payment of his obligations (or debts,) and that he was then indebted to the defendant, and under such circumstances Knox caused the plaintiff’s arrest under process lawfully issued for that purpose, then your verdict should be for the defendant; and whether there was any process issued in this case of the kind and character mentioned, in the county of Ford, is a matter for you to determine. The burden of proof rests with the plaintiff to show what the transaction was.”

, aence°neew" tua1, This instruction was wholly inapplicable under the testimony, and we think erroneous. We have searched the record in vain to find any testimony which tends in any degree to show that John D. Knox had begun any suit, civil or criminal, in Ford county, against the defendant; and there is no pretense on the part of the defendant that any such suit had been instituted, nor that any order of arrest had been issued in any case against the plaintiff. The officer acted alone under the telegraphic communication admitted to have been sent by John D. Knox, directing the arrest and detention of the plaintiff; and it was conceded that whatever proceedings were had in his arrest were for the purpose of enabling the collection of the money due from the plaintiff Zimmerman to Knox. Under these facts the imprisonment was illegal. The only material question left in dispute for the consideration of the jury, was the amount of damages for which the defendant was liable. The defendant had not alleged anything in justification, but had simply filed a general denial. No testimony was offered in justification or mitigation of the arrest, except that which may have tended to show that the plaintiff had sold his property, or was about to remove it out of the state, and to dispose of it with the intent to defraud his creditors; but if this fact had been established, it would have afforded no justification for the arrest and detention of the plaintiff in the manner stated. The court, however, by the instructions which it gave, directed the attention of the jury to these facts, assuming thereby that testimony had been offered tending to show justification of the wrongful imprisonment, and in this way diverted the attention of the jury from the real issues in the case. This direction was emphasized and repeated again and again in five of the subsequent instructions embraced in the charge, thus making it appear to be a proper and the leading question in the case.

Again, in the latter part of the fifth instruction, after telling the jury what would constitute a justification of the arrest and imprisonment, the court advises them that “the burden of proof rests with the plaintiff to show what the transaction was.” This was erroneous, in the connection in which it was used. It having been shown that the plaintiff was arrested and imprisoned at the instance of the defendant without process, and for the purpose of collecting a debt, the burden of proof was shifted and rested upon the defendant to show a justification or mitigation of the imprisonment. The charge was a lengthy one, and we think it was largely impertinent and improper. It is true that the giving of an instruction upon an abstract proposition of law, and which is irrelevant to the issues in the case, is not reversible error, unless it may be fairly inferred that the jury were misled thereby. But it appears quite probable that the inapplicable instructions here given influenced the jury to the prejudice of the plaintiff. When we come to look at the verdict in connection with the testimony, the amount assessed by the jury is singularly small, and we can only account for the same on the theory that the instructions of the court confused and misled the jury. Having found in favor of the plaintiff as they might well do, under the facts in this case, he was at least entitled to the actual damages which he may have suffered in consequence of the imprisonment. These include all expenses reasonably incurred in procuring a discharge from the illegal imprisonment, the loss of time, the interruption of business, and any bodily or mental suffering which the imprisonment may have occasioned. The jury awarded him but $15, which was the amount the plaintiff was required to pay as extra railroad fare alone, in order to reach his family,' as the ticket purchased by him was only good upon the train from which he had been taken. As heretofore stated, he was arrested in the presence of his family, as well as many others who were in the car with him, taken into the custody of an officer, conveyed back a distance of about sixty miles, and there held in custody for twenty-four hours, while his wife and children were carried westward among strangers without his care and protection. For the time lost, the interruption of the journey, and the expenses, beyond the extra railroad fare, incurred in reaching his family, as well as those incurred by his family while waiting for his return at Deming, together with any suffering, bodily or mental, which the imprisonment may have caused him, there was no allowance by the jury. We are inclined to think that the charge of the court paisled the jury, and the judgment must therefore be reversed, and a new trial granted.

All the Justices concurring.