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refusing a new trial after verdict for nominal damages upon a new trial granted upon the setting aside of a verdict in his favor, brings before the appellate court the order granting the new trial, if both bills of exception are in the record.

(March 17, 1915.)

5. Objection to language used by counsel in argument cannot be considered on appeal APPEAL by plaintiff from a judgment of

if made for the first time on motion for new trial.

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9. Appeal by plaintiff from a judgment held in an action for malicious prosecution that circumstances aggravating the plaintiff's bodily pain, etc., were proper elements of damages, and that a verdict of the jury for $500 was not so unreasonable as to warrant an interference by the court.

In Debedant v. Maestri, 134 La. 366, 64 So. 142, it was held that the damages in an action for malicious prosecution should be greater in a case where the plaintiff was placed in jail for some hours than in one where there was no incarceration.

False imprisonment.

In Southwestern Portland Cement Co. v. Reitzer, Tex. Civ. App. —, 135 S. W. 237, it was held that where one is wrongfully arrested he may recover in an action for false imprisonment damages for such injuries as resulted to him on account of the filthy condition of the jail in which he was placed, the defendant in such action being liable for all damages which flow from his wrong as a natural sequence in a continuous unbroken current.

And it has been held that if a storekeeper causes the arrest of a woman, he is liable in an action for false imprisonment for the acts of police officers while she was detained,

the Common Pleas Branch, Fourth Division, of the Circuit Court for Jefferson County, awarding nominal damages only after a substantial verdict in her favor had been set aside on defendant's motion for new trial, in an action brought to recover damages for alleged wrongful and forcible arrest of plaintiff. Reversed. The facts are stated in the opinion. Messrs. Chesley H. Searcy and Thomas C. Mapother, for appellant:

The court erred in setting aside the first verdict of $750, and granting a new trial, and erred in overruling plaintiff's motion to set aside the last verdict and reinstate the first.

Perkins v. Ogilvie, 148 Ky. 309, 146 S. W. 735.

The first verdict of $750 was not excessive, even with the testimony excluded as to what occurred in the room at police headquarters.

Foor v. Coombs, 15 Ky. L. Rep. 845; Holburn v. Neal, 4 Dana, 120; Illinois C. R. Co. v. Wilson, 31 Ky. L. Rep. 789, 103 S. W. 364; United Furniture Co. v. Wills, 158 Ky. 806, 166 S. W. 600; Stewart Dry Goods Co. v. especially where the act of searching her was the natural and probable consequence of her arrest. Simper v. Carroll, 31 Ohio C. C. 386.

And in Philadelphia, B. & W. R. Co. v. Crawford, 112 Md. 508, 77 Atl. 278, in an action for false imprisonment against a railway company for an arrest made by one of its officers, it was held that in assessing damages the jury might take into consideration the nature of the force applied to the plaintiff and his humiliation.

And in Jacques v. Parks, 96 Me. 268, 52 Atl. 763, where the plaintiff had been ar rested under a warrant issued illegally by a tax collector, the harsh treatment to which the plaintiff had been subjected by being exposed on a cold day was considered by the court in fixing the damages.

So, in Sebring v. Harris, 20 Cal. App. 56, 128 Pac. 7, in an action for wrongful arrest and false imprisonment, it was held that in determining the damages the jury might take into consideration the humiliation and mental anguish resulting where the plaintiff, a woman, was arrested and moved through a crowd to a fire engine house, and detained there for an hour pending the ar rival of the patrol wagon, upon the arrival of which, however, because of her protests

Instruction "A" requested by plaintiff, which merely announced the well-established principle that acting under orders. in no way affects the question of compensatory damages, though admissible in mitigation of punitive damages, should have been given. 1 Sutherland, Damages, 3d ed. § 150; 4 Sutherland, Damages, §§ 1257, 1258; Reynolds v. Price, 22 Ky. L. Rep. 5, 56 S. W. 502; Josselyn v. McAllister, 22 Mich. 306; Ball v. Horrigan, 47 N. Y. S. R. 384, 19 N. Y. Supp. 913.

Arnold, 158 Ky. 241, 164 S. W. 785; Monjo | pelled her against her will to go with him v. Monjo, 53 Hun, 145, 6 N. Y. Supp. 132; in an automobile to the city hall, and there Thorp v. Carvalho, 14 Misc. 554, 36 N. Y. delivered her into the custody of other perSupp. 1; Fuller v. Redding, 16 Misc. 634, sons who displayed firearms before her in 39 N. Y. Supp. 109. a very menacing way, and quizzed her very offensively; that she had not been guilty of any kind of an offense for which she might be lawfully arrested, and that the appellee did not have any warrant for her arrest, nor reasonable grounds for believing her to have committed a felony, and that she had not been guilty of any misdemeanor or any infraction of the ordinances of the city in his presence. The appellees answered, traversing the allegations as to damages suffered by her, and denied that she was wrongfully arrested, or wrongfully required to accompany the officers against her will from her home to the city hall; but the answer failed to deny that the appellee did arrest her, or did compel her to go with him to the city hall against her will. Upon a trial, the jury found a verdict for the appellant in the sum of $750 in damages. The appellees filed grounds for a new trial. In the grounds for a new trial, they complained that the court was in error to their prejudice, by permitting, over their objection, proof to be made by appellant of what occurred in the city hall after she arrived there, and when Kohler was not present, and also complained of the verdict being excessive, and of misconduct of the counsel for appellant upon the trial. The circuit court sustained the motion to set aside the verdict of the jury, and granted a new trial

Messrs. W. J. O'Connor, Pendleton Beckley, and J. M. Lee for appellees.

Hurt, J., delivered the opinion of the

court:

The appellant, Marie Ross (née Boutellier), was a girl seventeen years of age, and the daughter of a respectable family, who lived on Milton avenue, in Louisville, Kentucky, at the time of the event hereinafter related. She brought this suit in the Jefferson circuit court against the appellee Robert J. Kohler and the surety upon his official bond, Georgia Insurance Company. The appellee Kohler was a lieutenant of police in the city of Louisville.

The appellant, by her petition and amended petition, complains that about the 20th day of March, 1913, the appellee forcibly and wrongfully arrested her, and com-upon the sole ground that it was in error against riding, she was allowed to walk to the police station escorted by a fireman and policemen.

And the right to take into consideration the harsh or humiliating treatment of the plaintiff while in custody was impliedly upheld in the following cases, brought to recover for false imprisonment, in passing upon the question whether the damages were excessive. Ayres v. Harmon, Ind. App.

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104 N. E. 315 (where a woman was roughly treated before a crowd and the officer refused to take her to her friends near by); Davern v. Drew, 153 App. Div. 844, 138 N. Y. Supp. 1017 (plaintiff photographed, measured, and finger prints taken); Rucker v. Barker, Tex. Civ. App. 151 S. W. 871 (plaintiff arrested in presence of crowd, struck with pistol, taken in hoodlum wagon, and locked up with negroes and Mexicans); S. H. Kress & Co. v. Lawrence, Tex. Civ. App., 162 S. W. 448 (where a plaintiff was charged with stealing and pushed through a crowd of negroes and compelled to turn his pockets inside out); Hamilton v. Pacific Drug Co. 78 Wash. 689, 139 Pac. 642 (plaintiff awakened in his stateroom and placed under arrest and accorded same treatment as persons charged with crime).

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But it has been held that no recovery can be had against one causing a wrongful arrest on account of the plaintiff's being subjected to a mock trial by his fellow prisoners, since this did not naturally flow from the defendant's wrongful act, but was outside of and beyond the natural current which had its origin in, and flowed from, such act. Southwestern Portland Cement

Co. v. Reitzer, Tex. Civ. App. —, 135 S.
W. 237, motion for rehearing denied in 135
S. W. 241.

In Ocean S. S. Co. v. Williams, 69 Ga. 251, in an action for false imprisonment, it was held that where the arrest of the plaintiff was legal the party causing it could not be held liable for the acts of the officer or person in charge of the prisoner after the arrest, unless it could be shown that they were done by his authority, or that he caused them. And to the same effect is Kreger v. Osburn, 7 Blackf. 74.

And in Hopkins v. Garthwaite, 28 La. Ann. 325, it was held that where the facts show a probable cause for the arrest of the plaintiff in an action for false imprisonment, and the defendant did not prompt the ill treatment of the plaintiff while in the lockup, he was not legally responsible for it. J. T. W.

in admitting the evidence for appellant complained of, and that without that evidence, the verdict was excessive. This trial occurred in March, and the new trial was granted on the 18th day of April. The appellant excepted to the rulings of the court granting a new trial, and prayed an appeal to this court. On the 8th day of June the case came on again for trial, and resulted in a verdict of the jury for 1 cent in damages in favor of the appellant, and judgment was rendered accordingly. The appellant then filed grounds and moved the court to grant her a new trial and to set aside the last judgment, and to substitute and enter for it the first judgment in the case. The grounds relied upon by appellant for a new trial were that the court erred in refusing to allow the appellant to make proof of the occurrences at the city hall when Kohler was not present; and because of the admission, over her objection, of incompetent testimony offered by the appellee; and refusing to instruct the jury as set out in an instruction that was offered, marked "A;" and because the court erred in instructing the jury; and that the verdict was contrary to the law and the evidence. The court overruled her motion for a new trial, and to this she excepted. The court also overruled her motion to enter the judgment rendered upon the first trial as the judgment of the court, or to set aside the order granting a new trial after the first judgment. To these rulings she also excepted, and now appeals to this court.

The instructions of the court given upon the last trial are the same as those given upon the first trial, to which no objection was made by the appellant at their giving upon the first or last trial. Not having made any objection to the instructions given until the motion for a new trial, the appellant cannot now complain of the instructions which were given by the court, and, besides, the instructions seem to fairly present the issues raised in the evidence and upon the pleadings, and the measure of damages fixed by the instructions seems to be correct.

Upon both trials, the verdict of the jury has been to the effect that the appellant was arrested by the appellee without right, and forcibly and against her will she was required to accompany him to the city hall, and, besides, as above mentioned, by his answer he fails to deny that he did either of these things. We are, however, of the opinion that the court below was in error upon the last trial, when it excluded from the consideration of the jury, over the objection of the appellant, evidence relating to the things which occurred at the city hall after appellant arrived there, and be

fore she was permitted to leave. For the purpose of determining the correctness of this ruling, as well as others in the case, it will be necessary to give a short statement of the facts which the evidence conduces to prove. The evidence upon each trial was substantially the same, except in the last trial the evidence as to what occurred in the city hall when Kohler was not present was excluded over the objec tion of appellant.

The evidence for appellant conduces to prove that on the evening of March 20th, 1913, at about 7 o'clock, an automobile marked with letters upon the side "Louisville Police Patrol" came to Milton avenue and stopped about two doors from the door of appellant's father's home. The automobile was accompanied by the appellee, Moritz Stickler, the guard, and the chauffeur, dressed in the uniform of policemen of the city; that appellee first went into the house of one Elfring, and then came out and went into the house of one Haering, who lived next door to Boutellier, and coming out of the house of Haering, he approached the yard gate at the Boutellier home, and inquired if Marie Boutellier lived there. Being answered in the affirmative by one of the family, and the appellant, who was then roller skating upon the sidewalk, coming up at that time, he was told that there she was, and then he commenced to say something to her, when he was invited to come into the house by the sister of appellant, which invitation he accepted, and the appellant then inquired of him what he wanted with her, and he said "that Major Ridge wanted to talk with her, and had ordered him to come and bring her down to the city hall with him." She protested that she had not been guilty of anything, and that there must be some mistake about it, and asked who Ridge was, stating that she did not know him. He informed her that Ridge was the night chief of police. At her request he then stated that if she would accompany him to Haering's house, he would call up Ridge, and talk with him over the telephone. They then went into Haering's house, where the appellee called up someone, appellant did not know who, and said that he had a girl there named Marie, and that the reply to this was "to bring her on down." There were other communications between the appellee and the person to whom he was talking, resulting in appellee asking appellant if she had ever been to Bierod's on First and Market. She answered that she had not; that she worked at Roth's jewelry establishment at First and Market. He then hung up the receiver, and said that she would have to go down to the city hall with him. She asked him to permit her to

The evidence offered by the appellees tend to show that on the day upon which the arrest occurred, of which the appellant complains, Carroll, who is a sergeant of police and in charge of the switch board in the office of the night chief of police, called up Kohler by telephone, and told him that there was a girl named Marie, whose other name he did not know, and who lived on Milton avenue next door to Haering, and for him to go up there and get her and bring her down to the chief's office, that the night chief wanted to speak to her. Kohler, accompanied by Strickler and the chauffeur, went to Milton avenue, and inquired where Haering lived, and went in and asked him if there was any girl in the neighborhood by the name of Marie. He received information that there were two Maries there, one of whom was Marie Green, and lived on the opposite side of the street, and the other, Marie Boutellier, that lived in the adjoining house.

go on the street car, or said that she would the automobile, which traveled very fast and go with him on the street car, but he replied she being warm from her exercises in skatthat he had orders to bring her down with ing. As to the circumstances of her arrest, him. They went into the appellant's home and what took place before she started to for the purpose of her securing her cloak the city hall, she is corroborated by her and hat, and while there her mother pro- family and neighbors. posed that she would take the appellant down to the city hall on the street car, when appellee said that he had orders to bring her down with him. The automobile was then moved away a square and onehalf to avoid attracting attention to the fact that she was being arrested and taken | away by the police, but the movements of appellee and the presence of the police patrol had caused quite a number of people to congregate, and when they went out of appellant's home, the appellee had to order the people out of the way, so as to make an exit from the yard. She accompanied him in the automobile to the city hall, where he carried her into an office and delivered her to some other persons in a room, when a person whom she did not know, with two pistols in his hands, took her into another room, and, there presenting the pistols toward her, inquired if she had ever seen them before, and when she stated that she had not, he inquired of her if she was at That he went from there to the Liederkranz Hall on the night of the homi- Boutellier home, where he found the appelcide which had recently occurred, and when lant, and told her that Major Ridge wanted she answered that she was not, and never to speak to her, and to make sure they had been there in her life, he then asked would go to the telephone and call him up. her about different men and women of whom That when they went to the telephone, Carshe had never heard, and as to whether or roll told him to ask her if she worked at not she attended dance halls, and when she Roth's jewelry store at First and Market, answered in the negative, some of the par- and upon receiving an affirmative answer, ties present said they had made a mistake; Carroll told him to ask her if she knew a that she was not the party wanted. certain man, and that she answered, "Yes," was then taken into another room where and he (Carroll) then said "to tell her another officer was, and the statement was to come on down," and that he (appelmade to him that she was innocent, and they lee) said to her: "You are wanted at the had made a mistake, and she was then per- night chief's office; Major Ridge wants to mitted to leave the city hall. While she speak to you." That she said, “All right.” was being quizzed by the individual with That she went and got her hat and jacket the pistols, who was dressed in plain at her home, and that he and she then got clothes, two policemen in uniform were into the automobile and went down to the standing around her, and gazing very in- city hall, and entered into the city hall at tently upon her. The appellee was not a place where one door leading to the south present in the room to which the individual goes into the night chief's office, and the one with the pistols carried her. When she to the north into the officer's room, and emerged from the room, she again met ap- when they got there the night chief's office pellee, who was standing near, and who was closed, and that he went in and said inquired of her if she had money to pay to Sergeant Ridge "that there was the her car fare back home, and she answered young lady," and at about that time he that she had. He then invited her to accom- turned around, and she was gone into the pany him in the automobile, as he was "assembly" room, and that was the last he going in a square or two of her home. She saw of her, and that the next he saw of did accompany him so far as he went in her, she and Captain Hogan were standing the automobile, and upon leaving it, thanked on the steps, and that he inquired of her him. She testified that she was greatly if she had money to pay her car fare home, chagrinned and mortified and frightened by and she answered, "Yes," and he then inher experiences, and in addition to that vited her to get into the machine; that he contracted a very severe cold by riding in was going to Preston and Burnett streets,

She

make better time. She got into the machine and rode to Preston and Oak, and got out, and thanked him.

It is very apparent that the appellee Kohler, although he stated that he did not know for what purpose she was desired at the city hall, knew that he was bringing her to the city hall for the purpose of her being taken in charge by other officers, and there to be quizzed and examined for some purpose or other.

and she could go to Preston and Oak and | jail. This court held that she was entitled to damages for her deprivation of liberty while in jail, and the impairment of her health arising from her confinement in jail, and her mental and physical sufferings which were the direct and proximate results of her imprisonment. If the officer had had justifiable grounds for her arrest, as, for instance, she had committed an offense in his presence, or if he had had reasonable grounds to believe that she had been guilty of a felony, and as a result had made the arrest, or if he had been armed with a warrant for her arrest, he would have been held harmless from any things which she might thereafter suffer as a consequence of the arrest.

If the appellee Kohler, in the first instance, had had a right to make the arrest, he would not have been liable in any way for subsequent mistreatment which appellant received at the hands of other parties into whose custody she was lawfully deliv- In the case of Hall v. Hall, 3 Allen, 5, ered by him, and with which mistreatment | Hall was arrested by an officer on a warthe appellee had nothing to do. If an officer armed with a warrant executes it by the arrest of the party accused, and, as the law requires, takes him before a magistrate, or commits him to jail if the warrant so authorizes him, the officer making the arrest is not in any way liable for the damages suffered by the party, either by confinement in jail, or by the hands of any other officers into whose custody the accused may be placed; or, if one is justified in having criminal or penal process issued against another, and does so, such person is not liable for any damages which may result to the accused party by the mistreatment of the officer executing the process, or resulting from his confinement in jail, where he is placed by a committing magistrate; but if an officer makes a wrongful arrest, and the arrest and detention are wrongful, he is then responsible for all the damages which are suffered by the arrested party, and which are the direct results of the wrongful arrest and detention.

In the case of Illinois C. R. Co. v. Wilson, 31 Ky. L. Rep. 789, 103 S. W. 364, where it was alleged that a policeman had unlawfully arrested Wilson and accused him of the crime of larceny, and searched his person in a public place in order to find evidence of his alleged guilt upon him, the court held that testimony relating to the effect after his release which such arrest and search had upon his nervous system, as the result of such arrest and search, and evidence to the effect that after he was released from arrest it was necessary for him to have the services of a physician and treatment in a sanatorium, where all facts competent to be proven, touching his claim for damages.

In the case of Johnson v. Collins, 28 Ky. L. Rep. 375, 89 S. W. 253, a policeman had wrongfully arrested the plaintiff and taken her before a judge who committed her to

rant issued by a tax collector, for unpaid taxes, and was committed to jail upon the warrant. The court held that the officer was not justified in making the arrest, because, under the laws in that jurisdiction, he could not take the body by virtue of a warrant of that kind, where there was property which could have been taken for the payment of the taxes, and, as a result of the illegal arrest, that the officer was liable for the damages suffered by Hall for his detention in prison, and the inconvenience and suffering to which it subjected him, as being a direct consequence of the illegal act of the officer in service of the distress warrant, and proof of such inconvenience and suffering was therefore competent.

In the case of Fenelon v. Butts, 53 Wis. 344, 10 N. W. 501, Butts, by means of some preliminary proceeding which the court held to be unauthorized and illegal, accomplished the arrest and imprisonment of Fenelon, and it was held that proof of the condition and circumstances of the Fenelon

family, and the filthy condition of the jail in which she was confined by Butts and others, were proper elements of damages to be recovered by her; the arrest in this case having been held to be wrongful.

The cases of Jacques v. Parks, 96 Me. 268, 52 Atl. 763; Scott v. Flowers, 60 Neb. 680, 84 N. W. 81; Abrahams v. Cooper, 81 Pa. 232; Drumm v. Cessnum, 61 Kan. 472, 59 Pac. 1078; and Kindred v. Stitt, 51 Ill. 401, are all in accordance with the authorities above cited.

In Miller v. Fano, 134 Cal. 109, 66 Pac. 185, a police officer having a warrant of arrest for one man, by a mistake as to his identity, arrested another and delivered him to a constable from Los Angeles, who took him to that place and put him in jail. The court held, upon a suit for damages for the false arrest and imprisonment against the officer first making the arrest, that the

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