DocketNumber: No. 4,779
Citation Numbers: 64 Mont. 264, 209 P. 306
Judges: Ayers, Brantly, Cooper, Expressed, Galen, Holloway, Place, Reached
Filed Date: 7/15/1922
Status: Precedential
Modified Date: 9/9/2022
delivered the following opinion.
This is an action to recover the value of twenty-one cases of whisky and damages for its seizure. Heifer, the principal defendant, was night policeman of the city of Laurel, Calder, its city attorney, and Settergren and Hanner private individuals who responded to the request of Heifer to assist him. The complaint alleges that the ownership of the liquors was
The defendants have specified twelve errors as grounds for the reversal of the judgment. Such of them as need be considered will be grouped and disposed of in the order presented in the briefs.
The first is addressed to the ruling of the court in permitting R. L. Westover to answer the direct question as to who was the owner of the liquor after the purchase price had been paid on the night of December 22, 1919. He had already described the packages containing the whisky, and detailed the conversations between the parties culminating in
The next ruling complained of is the exclusion of the evidence of Attorney H. C. Crippen, offered to impeach the statement of - R. L. Westover concerning the ownership of the whisky. Mr. Crippen testified that he knew one Blackie Barlow, and also one Calgary Red, sometimes known as Red Archer; that the two men were associated together in business; that Blackie Barlow called upon him at his office, on or about the 23d or 24th of December, and consulted him in a professional capacity, and that the relation of attorney and client then existed between himself and Barlow, but not between himself and R. L. Westover; that about the 23d or the 24th of December, 1919, in the office of Mr. Crippen, where he had gone in response to the request of the latter, he (Westover) stated that Blackie Barlow had hired him to haul the whisky; that Barlow was its owner; and that he then made no claim that his brother was its owner. The defendants’ objection to this was that the evidence was incompetent, irrelevant, immaterial, without proper foundation, and a privileged communication. The evidence, if admitted, would have had an impeaching effect upon the statement of R. L. Westover concerning the ownership of the whisky. It was competent, because the relation of' attorney and client did not exist between Crippen and Westover, and admissible for the purpose of enabling the jury to pass upon the credibility of the witness. In view of the pleadings and the facts in the ease, however, I think the rejection of the evidence was
The next important exception was to the ruling allowing the plaintiff to state the value of the liquor to him for his own use. It is the law that when property has a value peculiar to the owner, its actual value to him, and not the market value, is the measure of compensation for its conversion. (Bowers on Conversion, sec. 659.) It had a personal value to the plaintiff, according to his needs and the purposes for which it might be utilized, although its value may have been trifling to others. It being impossible to lay down a fixed rule by which compensation for its loss could be determined, that question was of necessity left to the discretion of the jury.
The specifications next discussed in the briefs deal with the correctness of the court’s instructions 4, 5 and 6, and the refusal of the court to charge the jury, as proposed in defendants’ tendered instructions 2, 4, 6, 7, 8, 9 and 10. The charge covered by instructions numbered 4, 5 and 6, in substance, was this: That the defendants had no legal right to take the property from the possession of the plaintiff, and that all the participants therein were wrongdoers and trespassers; that Calder, Settergren and Hanner were not obliged
The argument advanced against the giving and refusing of these instructions is that by virtue of the provisions of Chapters 130, 143 and 175 of the Fifteenth Session Laws it was the right and duty of Keifer, as a police officer, “to place all these parties under arrest and to seize the liquors.” The quantity of liquor in their possession, and the fact that they were engaged in transporting so much, it is insisted, reflected the good faith of the defendants, furnished probable cause for the belief that their duty in the premises was to apprehend the parties and seize the liquor, and that Keifer was authorized by section 8261 of the Revised Codes of 1907 to call upon his codefendants to aid him in the undertaking. Such is not the law in tMs case. The plaintiff was entitled to the possession of the liquors until it could be shown that his right thereto had been forfeited by his own criminal misconduct. (State ex rel. Samlin v. District Court, 59 Mont. 600, 198 Pac. 362; State v. Peterson, 27 Wyo. 185, 13 A. L. R. 1284, 194 Pac. 342; Youman v. Commonwealth, 189 Ky. 152, 13 A. L. R. 1303, 224 S. W. 860.) As is said in the Samlin Case, the constitutional guaranty against un
Chapter 130, among other things, declares all places where intoxicating liquors are manufactured, sold or given away in violation of law are common nuisances. It provides punishment for their maintenance, for their abatement, and the seizure and destruction of the liquors and fixtures. Section 4 of the Act makes it the duty of every officer authorized to make arrests, to seize all intoxicating liquors held for sale or delivery contrary to law, and to arrest the persons actually or apparently in possession or control of the property and the premises in which they are found. Section 5 deprives all persons owning or claiming to own any such intoxicating liquors, glasses, bottles, kegs, pumps, bars and other fixtures destroyed under authority of the Act, of any right of action against the person, or against the state, county or city for the value of the liquors or fixtures. Chapter 175 of the Laws of 1917, known as the Prohibition Act, forbids the introduction into, the manufacture of, and the giving, exchanging, bartering, selling and disposing of ardent spirits or intoxicating liquors within the state. The provisions of section 9 of Chapter 143, Laws of 1917, are in rem, and altogether independent of any criminal prosecution for the violation of the liquor laws. (State v. Kelly, 57 Mont. 123, 187 Pac. 637; State v. Nielsen, 57 Mont. 137, 187 Pac. 639.) “It requires the officer, without a warrant, to arrest the offender and seize the liquor, vessels, fixtures and appurtenances, to take the offender before the court or judge, make complaint charging the offense committed, and furnish a particular description of the liquor and property seized and of the place where the same were seized. Thereupon the court or judge shall cause a warrant to issue directing the officer to hold in his possession the
Neither the nature nor the quantum of the information upon which the defendants acted is disclosed by the evidence. So far as the court is advised, they proceeded according to the dictates of their own minds, and without any facts upon which a court would determine whether they constituted “probable cause” according to statutory and constitutional authority. Heifer’s evidence was that some time .prior to December 22 he had learned “that the Westovers were out for some liquor”; that about 10 o’clock P. M. on December 22, he saw Bob Westover, the plaintiff’s brother, going into the garage of one Mendenhall in Laurel; that he immediately asked Hanner “if he would go over and keep tab on him”; that Hanner left, and shortly thereafter returned and reported that Bob Westover had left in an automobile, and had gone toward the bridge which crosses the Yellowstone River, a distance of about half a mile beyond the corporate limits of the city of Laurel; that he told Settergren that he would like to have him “come along and bring his car”; that they “were going to try to catch a bootlegger”; that after making a like request of Calder, the city attorney, he in company with Calder, Settergren and Hanner, in Settergren’s automobile, left the city of Laurel, and, proceeding in the direction taken by Westover, turned out the lights of the ear, and stopped at the bridge where the seizure was made. In justification, Heifer testified that he arrested the men for transporting whisky; that he did not know where they got it; that he intended to arrest them because he thought they were bootlegging, taking whisky around and selling it; that he thought he was arresting Bob Westover for a violation of the ordinances of the city of Laurel; that “as a matter of fact they were doing nothing, except I saw liquor in the ear at the time I attempted or did make the arrest”; that he did not
In State ex rel. Samlin v. District Court, supra, it was expressly held that a warrant, issued upon the conclusion of the applicant, without any facts stated in the application upon which the judicial officer to whom it was addressed could form his own conclusion, is not a showing of probable cause supported by oath or affirmation within the meaning of the guaranty against illegal searches and seizures. In State v. Bowker, 63 Mont. 1, 205 Pac. 961, this court held that, as the law stood at the time of the happenings here involved, the district court alone had jurisdiction to make the order the justice of the peace assumed to make.
The purpose of the prohibition statutes is the suppression of the liquor traffic and the punishment of offenders against them. All officers assuming to execute the authority they confer are required to observe all lawful commands. One who seizes the property or arrests the person of another can only justify himself by a strict compliance with the require
The charge in the complaint is a willful and malicious trespass in seizing and taking the personal property of
In order to justify an award of vindictive damages, there must exist an element of fraud, malice, evil intent or oppression which enters into and forms a part of the wrong. If the acts can be said to have been committed in the fair assertion of a supposed right, or in the discharge of a duty, there is then left no room for the award of punitive damages. “The tort is aggravated by the evil motive and on this rests the rule of exemplary damages.” (Milwaukee etc. R. Co. v. Arms, 91 U. S. 493, 23 L. Ed. 374 [see, also, Rose’s U. S. Notes].) In the absence of malice or abuse of process, or a desire to do injury, the damages should be compensatory only. Therefore, unless the evidence is in such condition that malice may be implied, the verdict in its entirety cannot be sustained. Mere deliberateness and unnecessary force or violence is not the test of punitive damages. (Philadelphia, B. & W. R. Co. v. Green, 110 Md. 43, 71 Atl. 986.) In the language of Chief Justice Pratt, in Wilkes v. Wood, Lofft, 19: “Damages are designed not only as satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as proof of the detestation of the jury to the action itself.”
Applying these tests to the evidence, unless the actions of the defendants attending the taking and destruction of the liquors were engendered by malice or ill will, they would not constitute such an invasion of the rights and privileges secured by the constitutional guaranties against unreasonable searches and seizures as will justify the imposition of vindictive damages. In our judgment, the evidence is not sufficient to warrant the allowance of vindictive damages.