Sands & Co. v. Norvell , 126 Va. 384 ( 1919 )

Kelly, J.,

delivered the opinion of the court.

This writ of error brings up for review a judgment in favor of Andrew L. Norvell against Sands & Company, Incorporated, for $1,600 in an action for false imprisonment.

The verdict and judgment below having been for the plaintiff, the case,' except as to certain questions arising upon the instructions, comes to us as upon a demurrer to the evidence, and viewed thus the material facts may be briefly stated as follows: On the night of November 14, 1914, some person or persons broke into the store of Sands & Company at Monroe, in Amherst county, and took therefrom a quantity of valuable merchandise. J. A. Duncan, the local manager of the store thought he had reason to suspect Andrew L. Norvell, Pete Norvell, Clinton Stinnett and John Critzer, and accordingly procured warrants for all of them, charging them with grand larceny. Upon these warrants the two Norvells were arrested. It subsequently developed that Critzer was the guilty party. So far as this civil case is concerned, it will not be necessary to go into the facts concerning the arrest and treatment of any of these parties except Andrew Norvell.

The warrants were issued by W. R. Watts, a justice of the peace for Amherst county, and'were delivered to C. W. Campbell, a constable of that county, and E. C. Rand, a special police agent of the Southern Railway Company, whose authority to act as an officer in the case, though somewhat questioned in the record before us, may be assumed without materially affecting our view of the case. Norvell resided at Monroe, but at the time of his arrest was off on a hunting trip at his father’s home some miles distant, and was there arrested by Campbell and Rand. The officers were accompanied by W. H. Cook, the district manager of Sands & Company, who had been sent for by Duncan to take charge of the prosecution. Cook was present at the time the arrest was made and continued thereafter to be an active participant in all that was done'in connection with the prosecution until Norvell, upon Cook’s direction, was discharged in the manner hereinafter appearing.

Norvell was arrested on the morning of November 19th, and was brought to Monroe about 11:00 o’clock that day, but there was no report of the arrest or return of the prisoner to the magistrate. Upon the contrary, Cook and Rand, who notwithstanding the presence of Campbell, during a part of the time, were really in charge of the entire proceeding, devoted their attention to an effort to get a confession from Norvell. Campbell left Monroe some time during the day and had no further connection with the case, Rand and Cook thereafter being constantly with the prisoner, except while he was in jail, until he was discharged.

In the meantime and shortly after noon on the day of the arrest, Norvell’s wife and mother and father arrived on the scene, and after taking in the situation, walked some distance, perhaps two miles, to the home of the justice of the peace who had issued the warrant, and induced him to come to Monroe so that they could procure bail for the prisoner. The justice got there about three or four o’clock, and bail satisfactory to him, and which he would have accepted, was offered, but Rand, in the presence of Cook who made no comments on the subject of bail but who was clearly acquiescing in and approving all that was done by Rand in that respect, objected to the granting of the bail, and said that he wanted to take Norvell to Lynchburg. The justice did not aggressively oppose this arrangement, but he did not consent to it or attempt to give any order of commitment for the prisoner to the Lynchburg jail. In the course of his testimony he says: “I told him, I said, ‘Mr. Rand the man offered bail and I came over here for that’, and he said ‘Don’t, we want to talk to him tonight’ ”; and he further testified that he had no authority to send the prisoner to Lynchburg and that the only reason he did not grant him bail was that Rand and Cook took charge of him and carried him away.

In the afternoon Norvell was compelled to suffer more or less discomfort by enforced exposure to cold during or pending the course of the series of interrogatories to which he was subjected by Rand and Cook, and he testified that during this exposure his feet were frostbitten. 1 He was kept at Monroe until about dark, and then Cook and Rand took him to Lynchburg where they had him locked up in a poorly furnished cell, and he passed the night there on a concrete floor. Cook and Rand went to the Carroll Hotel, where they spent the night.

On the following morning they brought Norvell from the jail to a restaurant where they gave him his breakfast, and then took him to the Carroll Hotel and further interrogated him at some length endeavoring to get a confession from him. He protested his innocence from the beginning. On the day of his arrest while he was at Monroe he told Cook that he understood that John Critzer was the man who had broken into the store, but did not make any positive statement to that effect. The next day at Lynch-burg, after these parties had left the Carroll Hotel and had gone to the railroad station for the purpose of returning to Monroe, Norvell made a further statement in which he explained to Rand and Cook that he had overheard a conversation between his brother (who was a brother-in-law to Critzer) and Critzer, in which Critzer had stated that he had broken into the store and taken the goods, and had related how and where he had concealed them.

[1] We may say in this connection that much stress is laid on this apparently belated information, and Norvell’s delay in giving the information seems to be relied upon as a reason why the officers had the right to hold him in. custody, and as a defense to this action. It seems to' us, however, that Norvell’s explanation was at least plausible. He testified that he did not like John Critzer, but was afraid of him; that Critzer was a dangerous man, and he did not wish to become involved in any difficulty with him. It may be very true that it is the duty of every good citizen to give information to the officers of the law when they know of its violation, but a mere undisclosed knowledge of such violation does not afford any just grounds for the arrest and detention of an innocent man upon the charge that he himself is the guilty party, r

Norvell was taken back to Monroe some time during the day after the arrest, and after being kept in the custody of Rand and Cook some time longer and required to go with them and look for the stolen articles, he was released. There was no trial, no hearing of any kind before the magistrate, and Norvell was simply turned loose. The magistrate, by the direction of W. H. Cook, dismissed the warrant and' endorsed the same as follows: “Dismissed by request of W. H. Cook, manager for Sands & Company.”

Norvell had been an employee of the Southern Railway Company and was off on a short vacation when his arrest took place. There is much conflict of evidence on the point, and much of the argument before us orally and in the briefs centered around the question whether Norvell lost his position with the railway company by reason of this charge against him. Without going into the evidence in any detail it is sufficient to say that the jury would have been justified in finding as- a reasonable inference therefrom that Norvell did have a job with the railway company to which he could and would have returned but for this prosecution, and that he did. not return to it because the railway company declined on that account to accept him again in the service.

[2] There was. material evidence tending to show that Sands & Company had probable cause for issuing the warrant against Norvell and a great deal of emphasis is laid upon this feature of the case but the question of probable cause, except as a matter of mitigation is not material. It furnishes no defense to the action. This is not an action for malicious prosecution, but for false imprisonment, and in such a case want of probable cause is not essential to the right of recovery. Parsons v. Harper, 16 Gratt. (57 Va.) 57, 73; George v. N. & W. Ry. Co., 78 W. Va. 345, 88 S. E. 1036; 8 Enc. Pl. & Pr. 845; 19 Cyc. 320, and the cases cited in note 7.

[3, 5] As a matter of law and upon facts which are not in dispute, we have no difficulty in holding that this plaintiff was unlawfully restrained of his liberty. The warrant was regular and valid and no action for false imprisonment could have been maintained if the prisoner had been taken in due course to the magistrate and there admitted to bail or imprisoned regularly upon due order of commitment from him; but the warrant directed, as it should have done, that the officers should “forthwith apprehend and bring before the justice who issued the same, or some other justice of Amherst county, the body of the prisoner to be dealt with according to law,” and section 3958 of the Code requires that “an officer arresting a person under a warrant shall bring such person before and return such warrant to a justice of the county or. corporation in which the warrant is issued, unless such person be let to bail as thereinafter mentioned.” Due and orderly provision is made for the commitment of the prisoner or his admission to bail when he is brought before the justice. There must, of course, be a reasonable time allowed for making such return, and some latitude must be given the officers in keeping a prisoner in custody after he has been arrested and before he is taken to the justice, but it is not permissible to trifle with him and detain and interrogate him for the ulterior" purpose of extracting a confession as to his own guilt, or getting information from him as to the guilt of others. Such a course would be a clear perversion of the process, and the right to take such a course would invite, and in many instances produce, the greatest sort of abuse of the processes’ of the law, and in all such cases it matters not at all that the process of arrest was in its inception regular and valid, and that it was obtained on probable cause. False imprisonment may result not only from the arrest of a person without any valid warrant, but also from the unlawful detention of a prisoner who has been lawfully arrested. Unreasonable delay in presenting a prisoner for examination or trial and a fortiori mistreatment after arrest followed by a release without any hearing before the magistrate, are instances in point. 12 A. & E. Enc. (2nd. ed.) 746, 747.

From the time the officers diverted their conduct from the mere keeping of the prisoner in custody in the due and regular course of delivering him to the justice of the peace, the detention was unlawful. There is much conflict in the evidence as to the extent of the mistreatment to which he was subjected, but upon the record before us there is no reason to differ upon the proposition that Cook and Band unlawfully detained this man from the afternoon of November 20th, to the afternoon of November 21st, subjected him to humiliation and exposure and other mistreatment not in any way warranted by the process which they held, carried him out of the jurisdiction of the magistrate, and required him to spend the intervening night in jail at Lynchburg.

It follows that the plaintiff is entitled to a recovery in this case, and the only question remaining to be determined is whether there was any error in the course of the trial with reference to instructions or other rulings which can be made the subject of a reversal.

[6] 1. It is urged upon us that the verdict should be set aside because the damages awarded by the jury were excessive. The mere statement of the case already set forth herein is sufficient to show that this ground cannot be maintained. Giving to the plaintiff’s evidence such weight as the jury might have given to it, and disregarding, as we must upon this point, the contrary evidence, this plaintiff, considering his station in life, was a man of fair standing in his community; he had an employment affording a livelihood which he probably lost by reason of his arrest and imprisonment; he was subjected to humiliation and personal discomfort and the loss of his liberty. Upon such evidence it would be manifestly improper for us to undertake to say that the jury exceeded proper discretion and power when they fixed his damage at $1,600. Bolton v. Vellines, 94 Va. 398, 404-5, 26 S. E. 847, 64 Am. St. Rep. 737; Mangum v. N. & W. Ry. Co., 125 Va. 244, 99 S. E. 686.

The distinction sought to be made between this case and the case of Bolton v. Vellines—namely, that in the former there was and in the latter there was not any legal authority for what was done—cannot be maintained. The imprisonment complained of here, notwithstanding the validity of the original warrant was just as illegal and as devoid of warrant in law as the imprisonment in Bolton v. Vellines.

[7, 8] 2. It appears that there were two trials of this case. ' On the first trial in May, 1918, the jury failed to agree. A member of that jury was one Wyatt Story. The second trial of the case, and the one at which the verdict here under consideration was rendered, was held in November, 1918. Presumably by some oversight Wyatt Story was again sworn and again served as a juror. After the verdict was returned, counsel for Sands & Company “moved the court to set aside the said verdict because Wyatt Story, one of the jurors, served on the trial of this case at a former hearing of this case at which hearing there was a hung jury, which motion the court overruled.” The bill of exceptions sets forth the foregoing facts and no others. There is nothing whatever in the certificate of the trial judge indicating whether it was or was not known before the verdict was rendered that Wyatt Story had served on the former jury. There is in the record, without any explanation and without any reference thereto by any order of the court or bill of exceptions, án affidavit made by the clerk of the court to the effect that “Wyatt Story was a'juror in both the said trials, being a member of the regular panel on the 'first trial and taken from the bystanders to complete the panel in the second trial, and that the fact that Wyatt Story, who sat as a juror on the first trial, had also served as a juror on the second trial, was not ascertained until a few minutes before the verdict on the second trial j was rendered.” Error will not be presumed, and taking the bill of exceptions alone there would manifestly be no ground upon which we could interfere with the finding of the trial court. If we can consider the affidavit at all, it simply shows that a few minutes (how many we do not know) before the verdict was rendered the fact that Wyatt had served on the former jury was discovered. It is true that the petition for writ of error states that this discovery was only made about two minutes before the jury brought in the verdict, but of course, we must dispose of the case upon the record as we find it; and in any view of it, we are constrained to the conclusion that if the defendant, after having this knowledge brought to its attention, saw fit to take the chance on the verdict, it cannot now complain. This view renders it unnecessary to decide the further question whether section 3155 of the Code, providing that “no exception to any juror on account of his age or other legal disability shall be allowed after he is sworn, unless by leave of court,” meets the objection.

[9, 10] 3. The plaintiff asked for and was allowed five instructions, and the defendant asked for fifteen instructions, seven of which (1, 2, 4, 6, 8, 10 and 13) were given and eight of which (3, 5, 7, 9, 11, 12, 14 and 15) were refused. We have already discussed the principal questions arising upon the action of the court with reference to these instructions, namely, whether the existence of probable cause in the procuring of the original warrant constituted a defense, whether the conduct of Rand and Cook after the warrant had been regularly issued constituted a false imprisonment, and as to the measure of damages.

The instructions given and those asked for and refused will appear in full with the official report of this case. Instructions 1 and 2 for the plaintiff were expressly approved in the case of Bolton v. Vellines, supra, and were equally appropriate under the evidence in this case. Instructions 3, 4 and 5, for the plaintiff, are in substantial accord with the conclusions announced in this opinion, and are unobjectionable in form.

[11] Instruction No. 3, requested by the defendant, was properly refused. The language of the instruction indicates that its purpose was to exclude certain evidence. The somewhat anomalous argument in support of it seems to proceed upon the theory that there was in fact no such evidence in the case as that which by the terms of the instruction the jury would have been directed to disregard. We have seen that there was evidence sufficiently connecting the defendant with the efforts to obstruct the plaintiff’s application for bail. It is true that Cook did none of the talking to the justice about bail, but as has appeared in the statement of the case, he was present all the time and plainly acquiesced in and approved of what Rand said and did in this, as in every other particular connected with the prosecution.

[12] Instructions 5 and 7, asked for by defendants and refused, staked the whole issue on the good faith and regularity of the warrant, ignored the evidence as to the improper treatment of the plaintiff after his arrest, and concluded with a direction to find for the defendant upon that partial view of the case. This, of course, rendered the instructions bad. The court, by instructions 6 and 8, gave the defendant the full benefit of all that could be justly claimed by reason of the regularity and authority of the warrant and the action of the magistrate.

[13, 14] If there was error in refusing instructions Nos. 9, 11 and 12, it was cured by the giving of Nos. 10 and 13; and there was nothing in the evidence which would have warranted the court in giving instructions 14 and 15.

[15, 16] 4. Finally, it is urged that the judgment should be reversed on account of the action of the trial court with reference to alleged improper remarks of counsel to the jury. The bill of exceptions upon this point is as follows: “Counsel for the plaintiff in his closing argument used language to the following effect: That the agents of this defendant corporation, Sands & Company, did wrong in handling the plaintiff as they had done, and that he (the counsel) was not surprised that the witness Cook was no longer in the employ of Sands & Co.—intimating that he had been discharged therefrom, for no one would want the services of a man who had brought about such a condition as was under consideration. Whereupon counsel for the defendants objected to such statement on the ground that there was no evidence before the jury to sustain counsel in his assumption that Cook had been discharged because of his conduct in connection with this case, and because such statement had a tendency to prejudice the minds of the jury; and the defendant’s counsel moved the court to stop the counsel for the plaintiff from making such statement, and to instruct the jury to disregard the same. Whereupon counsel for the plaintiff said the jury had the evidence before it and could draw their .own conclusion. Upon which the court said to the jury that they could try and determine the case only by the, evidence introduced before them and not by argument of counsel unless supported by the evidence—to which action and ruling of the court the defendant by counsel excepted.”

If the remarks of counsel here complained of had been ■of "sufficient gravity and materiality to plainly call for emphatic action by the court, the mere admonition “to the jury that they could try and determine the case only by the evidence introduced before them and not by argument of counsel unless supported by the evidence,” would perhaps not have met the requirements of the situation. McCoy v. Commonwealth, 125 Va. 771, 99 S. E. 644. In this case, however, we do not think that the defendant could have been prejudiced by what occurred in the argument. At any rate, such prejudice cannot be said to clearly appear, and we ought not therefore to overrule the judgment of the trial court in regard to it. State v. Allen, 45 W. Va. 65, 30 S. E. 209, 213. Considerable latitude must be allowed counsel in argument and in the ordinary case, discretion and judgment of the trial court ought to be and are decisive of questions'of this kind.

The judgment is affirmed.

Affirmed.