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refusing a new trial after verdict for nomi4. It is not prejudicial error for the at- nal damages upon a new trial granted upon torney for plan

intiff in a suit against a po- the setting aside of a verdict in his favor, lice officer for In se imprisonment, to refer brings before the appellate court the order in argument to the fact that defendant's granting the new trial, if both bills of excounsel is assistant city attorney, although ception are in the record. that fact does not appear in the record. Same objection to argument : when

(March 17, 1915.) raised. 5. Objection language by

PPEAL by plaintiff from judgment of if made for the first time on mation for new

Division, of the Circuit Court for Jefferson trial.

County, awarding nominal damages only Damages false imprisonment.

after a substantial verdict in her favor 6. Damages for false imprisonment may had been set aside on defendant's motion include compensation for all the natural and probable consequences of the wrong, in-, for new trial, in an action brought to recluding injury to the feelings, fear, humilia cover damages for alleged wrongful and tion, indignity, and disgrace, and injury to forcible arrest of plaintiff. Reversed. the person and physical suffering, interrup- The facts are stated in the opinion. tion of business, and loss of time from the Messrs. Chesley H. Searcy and Thomas restraint.

C. Mapotrier, for appellant: Same amount

The court erred in setting aside the first 7. Seven hundred and fifty dollars is not verdict of $750, and granting a new trial, excessive to allow a seventeen-year-old girl and erred in overruling plaintiff's motion of good family and reputation for arresting her without warrant and taking her to to set aside the last verdict and reinstate police headquarters to interview her with the first. respect to the commission of a crime of Perkins v. Ogilvie, 148 Ky. 309, 146 S. W. which she was ignorant, merely because her 735. Christian name was the same as that of the The first verdict of $750 was not excesone for whom the police were looking.

sive, even with the testimony excluded as Appeal granting new trial

to what occurred in the room at police 8. The action of the trial court in setting

headquarters. aside a verdict granting a new trial for error of law, which is not in fact error, is

Foor v. Coombs, 15 Ky. L. Rep. 845; Hol

burn v. Neal, 4 Dana, 120; Illinois C. R. Co. Same scope of review

order on

v. Wilson, 31 Ky. L. Rep. 789, 103 S. W. 364; former trial.

United Furniture Co, v. Wills, 158 Ky. 806, 9. Appeal by plaintiff from a judgment : 166 S. W. 600; Stewart Dry Goods Co. v. held in an action for malicious prosecution, especially where the act of searching her that circumstances aggravating the plain- was the natural and probable consequence tiff's bodily pain, etc., were proper elements of her arrest. Simper v. Carroll, 31 Ohio of damages, and that a verdict of the jury C. C. 386. for $500 was not so unreasonable as to war- And in Philadelphia, B. & W. R. Co, v. rant an interference by the court.

Crawford, 112 Md. 508, 77 Atl. 278, in an In Debedant v. Maestri, 134 La. 366, 64 action for false imprisonment against a So. 142, it was held that the damages in an railway company for an arrest made by one action for malicious prosecution should be of its officers, it was held that in assessing greater in a case where the plaintiff was damages the jury might take into considerplaced in jail for some hours than in one ation the nature of the force applied to the where there was no incarceration.

plaintiff and his humiliation.

And in Jacques v. Parks, 96 Me. 268, 52 False imprisonment.

Atl. 763, where the plaintiff had been ar

rested under a warrant issued illegally by In Southwestern Portland Cement Co. v. tax collector, the harsh treatment to Reitzer, Tex. Civ. App. 135 S. W. 237, which the plaintiff had been subjected by it was held that where one is wrongfully being exposed on a cold day was considered arrested he may recover in an action for by the court in fixing the damages. false imprisonment damages for such in- So, in Sebring v. Harris, 20 Cal. App. 56, juries as resulted to him on account of the 128 Pac. 7, in an action for wrongful arrest filthy condition of the jail in which he was and false imprisonment, it was held that in placed, the defendant in such action be determining the damages the jury might ing liable for all damages which flow from take into consideration the humiliation and his wrong as a natural sequence in a con- mental anguish resulting where the plaintinuous unbroken current.

tiff, a

was arrested and moved And it has been held that if a storekeeper through a crowd to a fire engine house, and causes the arrest of a woman, he is liable detained there for an hour pending the arin an action for false imprisonment for the rival of the patrol wagon, upon the arrival acts of police officers while she was detained, of which, however, because of her protests

error.

a

woman,

Arnold, 158 Ky. 241, 164 S. W. 783; 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 Instruction “A” requested by plaintiff, offensively; that she had not been guilty of which merely announced the well-established any kind of an offense for which she might principle that acting under orders, in no be lawfully arrested, and that the appellee way affects the question of compensatory did not have any warrant for her arrest, nor damages, though admissible in mitigation of reasonable grounds for believing her to have punitive damages, should have been given. ¡ committed a felony, and that she had not

1 Sutherland, Damages, 3d ed. $ 150; | been guilty of any misdemeanor or any in4 Sutherland, Damages, $S 1257, 1258; fraction of the ordinances of the city in Reynolds v. Price, 22 Ky. L. Rep. 5, 56 his presence. The appellees answered, S. W. 502; Josselyn v. McAllister, 22 Mich. traversing the allegations as to damages 306; Ball v. Horrigan, 47 N. Y. S. R. 384, suffered by her, and denied that she was 19 N. Y. Supp. 913.

wrongfully arrested, or wrongfully required Messrs. W. J. O'Connor, Pendleton to accompany the officers against her will Beckley, and J. M. Lee for appellees. from her home to the city hall; but the an

swer failed to deny that the appellee did Hurt, J., delivered the opinion of the arrest her, or did compel her to go with court:

him to the city hall against her will. Upon The appellant, Marie Ross (née Boutelo a trial, the jury found a verdict for the lier), was a girl seventeen years of age, and appellant in the sum of $750 in damages. the daughter of a respectable family, who The appellees filed grounds for a new trial. lived on Milton avenue, in Louisville, Ken. In the grounds for a new trial, they comtucky, at the time of the event hereinafter plained that the court was in error to their related. She brought this suit in the Jef- prejudice, by permitting, over their objecferson circuit court against the appellee tion, proof to be made by appellant of what Robert J. Kohler and the surety upon his occurred in the city hall after she arrived official bond, Georgia Insurance Company. there, and when Kohler was not present, The appellee Kohler was a lieutenant of and also complained of the verdict being police in the city of Louisville.

excessive, and of misconduct of the counsel The appellant, by her petition and for appellant upon the trial. The circuit amended petition, complains that about the court sustained the motion to set aside the 20th day of March, 1913, the appellee forci- verdict of the jury, and granted a new trial bly and wrongfully arrested her, and com- upon the sole ground that it was in error against riding, she was allowed to walk to But it has been held that no recovery can the police station escorted by a fireman and be had against one causing a wrongful arpolicemen.

rest on account of the plaintiff's being subAnd the right to take into consideration jected to a mock trial by his fellow prisonthe harsh or humiliating treatment of the ers, since this did not naturally flow from plaintiff while in custody was impliedly up- the defendant's wrongful act, but was outheld in the following cases, brought to re- side of and beyond the natural current cover for false imprisonment, in passing up which had its origin in, and flowed from, on the question whether the damages were such act. Southwestern Portland Cement excessive. Ayres v. Harmon, Ind. App. Co. v. Reitzer, Tex. Civ. App. 135 S. -, 104 N. E. 315 (where a

was W. 237, motion for rehearing denied in 135 roughly treated before a crowd and the S. W. 241. officer refused to take her to her friends In Ocean S. S. Co. v. Williams, 69 Ga. near by); Davern v. Drew, 153 App. Div. 251, in an action for false imprisonment, 844, 138 N. Y. Supp. 1017 (plaintiff photo- it was held that where the arrest of the graphed, measured, and finger prints plaintiff was legal the party causing it could taken) ; Rucker v. Barker, - Tex. Civ. App. not be held liable for the acts of the officer -, 151 S. W. 871 (plaintiff arrested in or person in charge of the prisoner after presence of crowd, struck with pistol, taken the arrest, unless it could be shown that in hoodlum wagon, and locked up with ne. they were done by his authority, or that he groes and Mexicans) ; S. H. Kress & Co. v. caused them. And to the same effect is Lawrence, Tex. Civ. App. 162 S. W. Kreger v. Osburn, 7 Blackf. 74. 448 (where a plaintiff was charged with And in Hopkins v. Garthwaite, 28 La. stealing and pushed through a crowd of ne- Ann. 325, it was held that where the facts groes and compelled to turn his pockets in- show a probable cause for the arrest of the side out); Hamilton v. Pacific Drug Co. 78 plaintiff in an action for false imprisonWash. 689, 139 Pac. 642 (plaintiff awakened ment, and the defendant did not prompt the in his stateroom and placed under arrest ill treatment of the plaintiff while in the and accorded same treatment as persons lockup, he was not legally responsible for it. charged with crime).

J. T. W.

woman

case.

in admitting the evidence for appellant com-y fore she was permitted to leave. For the plained of, and that without that evidence, purpose of determining the correctness of the verdict was excessive. This trial oc- this ruling, as well as others in the case, curred in March, and the new trial was it will be necessary to give a short stategranted on the 18th day of April. The ap- ment of the facts which the evidence conpellant excepted to the rulings of the court duces to prove. The evidence upon each granting a new trial, and prayed an appeal trial was substantially the same, except to this court. On the 8th day of June the in the last trial the evidence as to what case came on again for trial, and resulted occurred in the city hall when Kohler was in a verdict of the jury for 1 cent in dam- not present was excluded over the objecages in favor of the appellant, and judg- tion of appellant. ment was rendered accordingly. The ap- The evidence for appellant conduces to pellant then filed grounds and moved the prove that on the evening of March 20th, court to grant her a new trial and to set 1913, at about 7 o'clock, an automobile aside the last judgment, and to substitute marked with letters upon the side "Louisand enter for it the first judgment in the ville Police Patrol" came to Milton avenue

The grounds relied upon by appellant and stopped about two doors from the door for a new trial were that the court erred of appellant's father's home. The automoin refusing to allow the appellant to make bile was accompanied by the appellee, Moritz proof of the occurrences at the city hall when Stickler, the guard, and the chauffeur, Kohler was not present; and because of the dressed in the uniform of policemen of the admission, over her objection, of incompe- city; that appellee first went into the house tent testimony offered by the appellee; and of one Elfring, and then came out and went refusing to instruct the jury as set out in an into the house of one Haering, who lived instruction that was offered, marked “A;” next door to Boutellier, and coming out of and because the court erred in instructing the house of Haering, he approached the the jury; and that the verdict was contrary yard gate at the Boutellier home, and into the law and the evidence. The court | quired if Marie Boutellier lived there. Beoverruled her motion for a new trial, and ing answered in the affirmative by one of to this she excepted. The court also over- the family, and the appellant, who was then ruled her motion to enter the judgment roller skating upon the sidewalk, coming up rendered upon the first trial as the judg. at that time, he was told that there she was, ment of the court, or to set aside the order and then he commenced to say something to granting a new trial after the first judg. her, when he was invited to come into the ment. To these rulings she also excepted, house by the sister of appellant, which inviand now appeals to this court.

tation he accepted, and the appellant then The instructions of the court given upon inquired of him what he wanted with her, the last trial are the same as those given and he said "that Major Ridge wanted to upon the first trial, to which no objection talk with her, and had ordered him to come was made by the appellant at their giving and bring her down to the city hall with upon the first or last trial. Not having him.” She protested that she had not been made any objection to the instructions given guilty of anything, and that there must be until the motion for a new trial, the appel- some mistake about it, and asked who Ridge lant cannot now complain of the instruc- was, stating that she did not know him. He tions which were given by the court, and, informed her that Ridge was the night chief besides, the instructions seem to fairly pre- of police. At her request he then stated sent the issues raised in the evidence and that if she would accompany him to Haerupon the pleadings, and the measure of ing's house, he would call up Ridge, and damages fixed by the instructions seems to talk with him over the telephone. They be correct.

then went into Haering's house, where the Upon both trials, the verdict of the jury appellee called up someone, appellant did has been to the effect that the appellant not know who, and said that he had a girl was arrested by the appellee without right, there named Marie, and that the reply to and forcibly and against her will she was this was "to bring her on down." There required to accompany him to the city hall, were other communications between the and, besides, as above mentioned, by his appellee and the person to whom he was answer he fails to deny that he did either talking, resulting in appellee asking appelof these things. We are, however, of the lant if she had ever been to Bierod's on opinion that the court below was in error First and Market. She answered that she upon the last trial, when it excluded from had not; that she worked at Roth's jewelry the consideration of the jury, over the ob- establishment at First and Market. He jection of the appellant, evidence relating then hung up the receiver, and said that to the things which occurred at the city she would have to go down to the city hall hall after appellant arrived there, and be with him. She asked him to permit her to 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 skat. that 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 The evidence offered by the appellees tend down to the city hall on the street car, to show that on the day upon which the when appellee said that he had orders to arrest occurred, of which the appellant combring her down with him. The automobile plains, Carroll, who is a sergeant of police was then moved away a square and one and in charge of the switch board in the half to avoid attracting attention to the office of the night chief of police, called up faet that she was being arrested and taken Kohler by telephone, and told him that there away by the police, but the movements of was a girl named Marie, whose other name appellee and the presence of the police patrol he did not know, and who lived on Milton had caused quite a number of people to avenue next door to Haering, and for him congregate, and when they went out of ap- to go up there and get her and bring her pellant's home, the appellee had to order the down to the chief's office, that the night people out of the way, so as to make an chief wanted to speak to her. Kohler, acexit from the yard. She accompanied him companied by Strickler and the chauffeur, in the automobile to the city hall, where went to Milton avenue, and inquired where he carried her into an office and delivered Haering lived, and went in and asked him her to some other persons in a room, when if there was any girl in the neighborhood a person whom she did not know, with two by the name of Marie. He received inforpistols in his hands, took her into another mation that there were two Maries there, room, and, there presenting the pistols one of whom was Marie Green, and lived on toward her, inquired if she had ever seen the opposite side of the street, and the other, them before, and when she stated that she Marie Boutellier, that lived in the adjoining had not, he inquired of her if she was at house. 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. She 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 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,

9

was

and she could go to Preston and Oak and jail. This court held that she was entitled make better time. She got into the machine to damages for her deprivation of liberty and rode to Preston and Oak, and got out, while in jail, and the impairment of her and thanked him.

health arising from her confinement in jail, It is very apparent that the appellee Koh-, and her mental and physical sufferings ler, although he stated that he did not know which were the direct and proximate results for what purpose she was desired at the of her imprisonment. If the officer had had city hall, knew that he was bringing her to justifiable grounds for her arrest, as, for the city hall for the purpose of her being instance, she had committed an offense in taken in charge by other officers, and there his presence, or if he had had reasonable to be quizzed and examined for some pur- grounds to believe that she had been guilty pose or other.

of a felony, and as a result had made the If the appellee Kohler, in the first in arrest, or if he had been armed with a warstance, had had a right to make the arrest, rant for her arrest, he would have beer held he would not have been liable in any way harmless from any things which she might for subsequent mistreatment which appel- thereafter suffer as

a consequence of the lant received at the hands of other parties arrest. 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 rant issued by a tax collector, for unpaid armed with a warrant executes it by the taxes, and was committed to jail upon the arrest of the party accused, and, as the law warrant. The court held that the officer requires, takes him before a magistrate, or was not justified in making the arrest, becommits him to jail if the warrant so au- cause, under the laws in that jurisdiction, thorizes him, the officer making the arrest he could not take the body by virtue of a is not in any way liable for the damages warrant of that kind, where there was propsuffered by the party, either by confinement erty which could have been taken for the in jail, or by the hands of any other officers payment of the taxes, and, as a result of into whose custody the accused may be the illegal arrest, that the officer was liable placed; or, if one is justified in having for the damages suffered by Hall for his criminal or penal process issued against detention in prison, and the inconvenience another, and does so, such person is not and suffering to which it subjected him, as liable for any damages which may result being a direct consequence of the illegal act to the accused party by the mistreatment of the officer in service of the distress war. of the officer executing the process, or re- rant, and proof of such inconvenience and sulting from his confinement in jail, where suffering was therefore competent. he is placed by a committing magistrate; In the case of Fenelon v. Butts, 53 Wis. but if an officer makes a wrongful arrest, 344, 10 N. W. 501, Butts, by means of some and the arrest and detention are wrongful, preliminary proceeding which the court he is then responsible for all the damages held to be unauthorized and illegal, accomwhich are suffered by the arrested party, plished the arrest and imprisonment of Fenand which are the direct results of the elon, and it was held that proof of the conwrongful arrest and detention.

dition and circumstances of the Fenelon In the case of Illinois C. R. Co. v. Wil- family, and the filthy condition of the jail son, 31 Ky. L. Rep. 789, 103 S. W. 364, in which she was confined by Butts and where it was alleged that a policeman had others, were proper elements of damages to unlawfully arrested Wilson and accused be recovered by her; the arrest in this case him of the crime of larceny, and searched having been held to be wrongful. his person in a public place in order to find

The cases of Jacques v. Parks, 96 Me. 268, evidence his alleged guilt upon him, the 52 Atl. 763; Scott v. Flowers, 60 Neb. 680, court held that testimony relating to the 84 N. W. 81; Abrahams v. Cooper, 81 Pa. effect after his release which such arrest 232; Drumm v. Cessnum, 61 Kan. 472, 59 and search had upon his nervous system, as Pac. 1078; and Kindred v. Stitt, 51 Ill. 401, the result of such arrest and search, and

are all in accordance with the authorities evidence to the effect that after he was above cited. released from arrest it was necessary for

In Miller v. Fano, 134 Cal. 109, 66 Pac. him to have the services of a physician and 185, a police officer having a warrant of treatment in a sanatorium, where all facts arrest for one man, by a mistake as to his competent to be proven, touching his claim identity, arrested another and delivered him for damages.

to a constable from Los Angeles, who took In the case of Johnson v. Collins, 28 Ky. him to that place and put him in jail. The L. Rep. 375, 89 S. W. 253, a policeman had court held, upon a suit for damages for the wrongfully arrested the plaintiff and taken false arrest and imprisonment against her before a judge who committed her to the officer first making the arrest, that the

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