C. P. STROZZI, Respondent, v. IRA D. WINES and EUGENE WINES, Appellants
Strozzi v. Wines
Bonnifield, C. J.: I concur.
C. P. STROZZI, Respondent, v. IRA D. WINES and EUGENE WINES, Appellants.
[No. 1520.]
C. P. STROZZI, Respondent, v. IRA D. WINES and EUGENE WINES, Appellants.
Justice of Peace — Jurisdiction—Forcible Entry and Detainee. A justice of the peace has no jurisdiction of an action for forcible entry and unlawful detainer.
Criminal Law — Trespass. Under the statutes of this state trespass is not a crime.
False Imprisonment — Defenses—Void Process. A complainant, at whose instance an arrest was made, cannot justify under a void process.
Idem — Idem—Probable Cause. In an action for damages for false imprisonment, the question of probable cause does not depend upon the fact of actual guilt of the person imprisoned, but whether the prosecutors, as reasonable men, had cause to believe him guilty.
Idem — Damages. In an action for damages for false imprisonment, where the testimony tended to show bad faith upon the part of the defendants in retaking possession ‘of the property in dispute during the absence of the plaintiff while under arrest, a judgment foi‘ two hundred dollars is not excessive.
Appeal from the District Court of the State of Nevada, Elko county; G. F. Talbot, District Judge:
Action by C. P. Strozzi against Ira D. Wines and Eugene Wines, for damages for false imprisonment. Judgment for plaintiff, and defendants appeal.
Affirmed.
The facts sufficiently appear in the opinion.
E. S. Farrington, for Appellants:
I. If this is an action for malicious prosecution, both malice and want of probable cause must be proven by a preponderance of the evidence. If either malice or want of probable cause be not shown, a verdict for the plaintiff cannot be sustained. Malice may be inferred from want of probable cause, but probable cause must be shown by direct and positive testimony. (Fenstermaher v. Page, 20 Nev. 290.)
II. If this be an action of trespass for a false imprisonment, or for a malicious arrest, according to some authorities, the plaintiff cannot prevail unless it appears by a preponderance of the evidence that there was no probable cause for the action against Strozzi, and for his arrest. (Neall v. Hart, 115 Mass. 347; 2 Am. St. Rep. 260; 1 Estee Pleading, sec. 1656; Gasebeer v. Rice, 24 N. W. 693.)
III. It was error to instruct the jury that the question of trespass and title were immaterial and not in issue in the case. By this instruction defendants were deprived of the benefit of their testimony showing probable cause. The court, after stating to the jury that all the instructions offered by counsel were incorrect, except one, and that a great amount of testimony had been offered, tending to show that Strozzi was a trespasser when he entered the Len Wines place; and, also, that much testimony had been given as to the title to that property, instructed them as follows: “The question as to whether Strozzi was a trespasser, or who owned the property, is immaterial and not in issue in this case.” The court again says in its instructions: [This action] “is not brought to determine who owns the real property, or to determine whether plaintiff is guilty of a trespass.” These instructions were both given without any qualification whatever. And, while the jury are told that “ the only question is: Did the defendants have Strozzi arrested maliciously and without probable cause?” that they may “grant exemplary or punitive damages ” if they find that Ira D. Wines swore to the complaint in the justice court “ maliciously, without probable cause, and with spite or ill will,” and that the fact that the justice “ issued the warrant of arrest is no defense if the defendants acted maliciously and without probable cause,” they are nowhere in the instructions informed that they may consider the testimony as to the trespass of Strozzi — that is, the evidence tending to show a fraudulent and forcible entry and unlawful detainer by Strozzi — in determining whether there was malice or probable cause, or in determining the amount of damages to be awarded, or in deciding whether Strozzi is entitled to exemplary damages.
IV. The effect of the instruction was to take the evidence as to the trespass and title away from the jury, and to exclude from them evidence within the knowledge of the defendants which tended to show that Strozzi was guilty of a fraudulent and forcible entry and unlawful detainer. If the evidence was admissible, it certainly should have been considered. (Ricord v. C. P. R. R. Co., 15 Nev. 183; Hitchcock v. North, 39 Am. Dec. 540; O’Brien v. Frasier, 54 Am. Rep. 171; Swindell v. Houck, 28 N. E. 736; Casebeer v. Rice, 24 N. W. 698; Murphy v. Martin, 16 N. W. 606; Sanders v. Palmer, 55 Fed. 222; Johnson v. Miller, 19 N. W. 310.)
V. In the case of Fenstermaher v. Page, 20 Nev. 290, which the court evidently had in mind when giving its instructions, evidence as to the ownership of the heifers, which plaintiff was accused of killing, was rejected in the lower court. This action of the lower court was sustained by the supreme court, on the ground that no offer was made in connection with the question to produce evidence showing that the defendant knew, or should have known, that the cattle wounded did not belong to another person. In the present case the evidence was all in, and it had already been shown that the defendants knew of the trespass and all the facts connected therewith. Had such an offer been made, the evidence as to the ownership of the heifers would have been clearly admissible, and, being admitted, it would have been error to have instructed the jury that it was immaterial. This question is discussed by the court in the case of Ricord v. C. P. R. R. Co., 15 Nev. 183. All of the circumstances tending to show defendants’ motives ought to be inquired into. (Hitchcock v. North, 39 Am. Dec. 540; O’Brien v. Frasier, 54 Am. Rep. 171; Swindell v. Houck, 28 N. E. 736; Burt v. Place, 4 Wend. 591; Besson v. Southard, 10 N. Y. 236; 2 Greenleaf’s Ev. sec. 457; Johnson v. Miller, 19 N. W. 310.)
■ VI. If Wines merely stated all the facts fully and honestly to the justice of the peace' — and on this point there appears to be no conflicting testimony — and the justice put a wrong construction on such facts, or mistook the law, Wines is not liable. The court erred, therefore, in refusing to give defendants’ second instruction. (Ball v. Rawles, 28 Pac. 940, sec. 3; Marks v. Sullivan, 33 Pac. 226; Barker v. Stetson, 7 Gray (Mass.) 53; Booth v. Kurrus, 26 Atl. 1013; Nowak v. Waller, 10 N. Y. S. 199; Teal v. Fissel, 28 Fed. 351; Langford v. Boston & A. R. Co., 144 Mass. 431; Oakley v. Tate, 24 S. E. 806; Bishop, Non-Contract Law, sec. 211; Neall v. Hart, 115 Mass. 347.)
John T. Baker and -Brown & Henderson, for Respondent:
I. False imprisonment is the unlawful restraint of another contrary to his will, either with or without process of law. Its essential elements are: First, detention of the person, and, second, the unlawfulness of the detention. (7 Am. Ency. of Law, 661, 662, 664; Comer v. Knowles, 17 Kan. 436; Johnson v. Bouton, 53 N. W. Rep. 997; Wachsmuth v. Merchants Bank, 96 Mich. 426.)
II. The questions of malice and want of probable cause are immaterial, except so far as they affect the measure of damages. (Johnson v. Boioton, 53 N. W. 997; Comer v. Knowles, 17 Kan. 436; Brown v. Chadsey, 39 Barb. (N. Y.) 253; Wachsmuth v. Merchants Bank, 96 Mich. 426; Bauer v. Clay, 8 Kan. 580; 7 Am. Ency. Law, 688, note 8.)
III. It is true, as stated in Teal v. Fissel, 28 Fed. Rep. 357, and other cases cited by appellants’ counsel, that if a person “have probable cause to believe a crime has been committed, and does no more than make information of the facts, .he is not responsible for the arrest which follows. If the justice, through error of judgment, issues a warrant when none should issue, or an erroneous, warrant, in substance or form, the error is his alone.” But the principle invoked by appellants’ counsel is not applicable to the facts of this case. The defendants had no probable cause to believe that a “ crime ” had been committed. They did not intend to set in motion the criminal procedure of the justice court. The supposed injury,of which they complained was of a civil nature; the remedy they sought was the redress of a supposed private wrong in order that they might be restored to a supposed private right. The arrest they asked for, and procured, was a civil arrest in a civil action. The policy which encourages the exposure and arrest of criminals cannot be appealed to for the protection of the defendants in this action. He who procures the arrest of another under a void writ in a civil action is guilty of false imprisonment. (7 Am. Ency. of Law, pp. 679-682, and cases cited in first paragraph on page 682; Paulus v. Grobben, 62 N. W. Rep. 163; Teal v. Fissel, 28 Fed. Rep. 351, and cases cited at page 352; Wachsmuth v. Merchants Bank, 96 Mich. 426; Bryan v. Oongdon, 86 Fed. Rep. 221.)
IV. The plaintiff proved actual damages amounting to at least $60, in expenses, loss of time, etc. If there had been no proof of malice on the part of defendants, and of want of probable cause, plaintiff would have been entitled to a verdict for at least this amount. (Wachsmuth v. Merchants Bank, 96 Mich. 426; Johnson v. Bouton, 53 N. W. Rep. 997.) We think, however, that there was sufficient evidence to justify the jury in awarding exemplary damages, and that, under the circumstances of the case, a verdict of $200 was far from excessive.
V. Probable cause is such a state of facts and circumstances as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably and without prejudice to believe that the person accused is guilty. {Jordan v. Alabama G. S. B. Go., 81 Ala. 220; Hilliard on Torts, ch. 12, sec. 18.)
VI. The evidence not only fails to show that the defendants had reasonable grounds to believe Strozzi’s entry and detainer to be fraudulent, but, on the contrary, it shows affirmatively that there were facts and circumstances within the knowledge of the defendants, which would have induced an unprejudiced, impartial, reasonable man to think that Strozzi had made the entry and detained the premises in good faith, and believing that he had a legal right to enter upon and hold the premises. The defendants knew of the existence of the mortgage made by Len Wines and owned by the Elko-Tuscarora Mercantile Co. They knew that Strozzi claimed to have bought the mortgage. They knew that Strozzi had entered the premises while they were vacant. They undoubtedly knew, since they must have known the condition of the house, that the entry was made without the breaking of doors or windows, and without violence, as testified to by Bartholomew.
By the Court,
Belknap, J.:
Plaintiff purchased a mortgage made by Len Wines and wife to the Elko-Tuscarora Mercantile Company upon premises known as the Len Wines place, in Ruby valley in Elko county. He ivas advised by the vice-president of the company to take possession of the property. Acting upon the advice, he and two others took peaceable possession. He remained so in the possession for two weeks, when he and his companions were arrested by the constable of Ruby Valley township upon a warrant charging them with the offense of trespass. The warrant was issued by the justice of the peace of South Ruby township in a cause entitled: "The State of Nevada, Plaintiff, v. C. P. Strozzi, et al., Defendants," wherein defendants were charged with forcible entry and unlawful detainer of the above-mentioned mortgaged property. They were brought to the justice's court, a distance of eight miles, when the case was continued, and finally dismissed without trial, at the instance of one of the defendants. Upon the return of plaintiff, after arrest, he was met by the other defendant at the gate of the premises, and forbidden to enter.
Upon substantially thesedacts a jury in an action for false imprisonment returned a verdict for $200 damages.
It must be conceded that in the action brought before the justice that magistrate had no jurisdiction of the action of forcible entry and unlawful detainer, which appellants seemed to have attempted to institute. The constitution confers jurisdiction upon the district courts of actions of this nature. Moreover, the warrant described an offense unknown to the criminal statutes of the state.
It is unnecessary to cite authority to the effect that the proceedings before the justice were absolutely void, and that the warrant could not afford any justification for the arrest.
Appellants assign as error the refusal of the court to give two certain instructions asked of and refused by the court, and also to the charge of the court.
The first of these proceeds upon the assumption that the justice's court had jurisdiction of the cause. This was contrary to the fact, and the instruction was therefore inapplicable. Without considering other objections to the second instruction, it is not the law that a complainant at whose instance an arrest has been made can justify under a void, process. (7 Am. & Eng. Ency. p. 679, and cases cited.)
In the charge given by the court the jury were told, among other things, that the question whether plaintiff was a trespasser, or who owned the property, was immaterial; that the only question was: Did the defendants have plaintiff arrested maliciously and without probable cause? Appellants claim that the effect of this was to deprive them of the defense of probable cause. The question of probable cause did not depend upon the fact of Strozzi's actual' guilt, but whether appellants, as reasonable men, had cause to believe him guilty. The rule announced by the court was more liberal to appellants than that contended for by themselves.
It is claimed that the judgment for $200 damages is excessive. There was testimony tending to show bad faith upon the part of defendants in retaking possession of the property during the absence of plaintiff under arrest, and this, of itself, fully supports the verdict and judgment.
The judgment and order denying a motion for new trial are affirmed.
Bonnifield, C. J.: I concur.
Massey, J., did not participate in the decision.