— Complaint in three paragraphs for false imprisonment, to each of which paragraphs the appellants jointly and severally demurred. Demurrers overruled, and exception. Issues of fact; jury trial; verdict and judgment for the plaintiff. Motions for a venire de novo and for a new trial made and overruled, and exception.
It is not necessary to set out the complaint in full. The counsel for the appellants admit that the three paragraphs are all based on the same transaction, and do not differ except in giving details, and in the method of charging the several defendants, differences which will be notioed so far as it may become necessary.
It is objected to the first paragraph of the complaint that it shows no cause of action against the defendant Richey.
The verdict was silent concerning Richey, and before taking judgment thereon against the appellants, the appellee dismissed the case as to him. He does not complain, and is not a party to the appeal. It is clear, for reasons which will be stated when we come to consider the motion for a venire de novo, that in this respect the court committed nO' error.
The further objection is made that the paragraph contains no direct charge against the express company; that the acts of Hazen, as alleged, constituted an unlawful trespass, an assault and battery, for which the corporation could not be held liable, without showing that it authorized him to do the acts complained of, or that he did them in the line of his duty as agent of .the company. And it is contended, in this connection, that the complaint is not made good against the company by the averment which is made, that the acts of Hazen were done “at the instigation and procurement of the
We do not think of more apt words with which the company could have been charged with responsibility. But, if the objection were well taken, the pleading would nevertheless be good on demurrer, but subject to a motion to be made more specific. Stated succinctly, the complaint shows that on the 18th day of September, 1876, the plaintiff was arrested by said Hazen, without process or warrant, at St. Paul, Minnesota, on the false and groundless charge of the larceny of $1,015 from the office of said company in Muncie, Indiana; that said Hazen then and there forcibly took the plaintiff to the office, and before the officers of said company in said city, where, by the direction and order of the officers of said company, the plaintiff was further imprisoned, his baggage searched, the keys to his baggage taken from him by force and violence, his baggage rifled, and papers and other articles t$iken therefrom and forcibly and without right detained from him ; that, on the 20th day of said month, said defendants still holding the plaintiff in custody by violence, as aforesaid, forcibly and by intimidation and threats, took him from said city of St. Paul to Indianapolis, Indiana, at the instigation and by the procurement of the defendants, the American Express Company, Edward W. Sloan, one Julien, and William Brown, and that the parties last aforesaid there forcibly with strong hand and without legal authority or warrant of any kind, forcibly and by threats kept the plaintiff imprisoned and restrained of his liberty for six days, and denied him access to friends, attorneys, or any persons except said Hazen and the other agents of said company, and said Sloan and Julien, and so
The transaction thus shown concerned the business of the company : that is to say, the recovery of money lost by the company, and which the plaintiff: was supposed, by the officers of the company, to have stolen ; or, if not the recovery of the money,.then, at least, the punishment of the supposed thief; and probably both these objects were aimed at. We think it clear that the corporation had the power, by proper and lawful modes, to pursue and cause the arrest and punishment of any one who had stolen or embezzled the money or property of the company, or for which it was responsible. If not expressly granted it, this power must be implied from the nature and necessities of the business of an express company. Such companies must be deemed to be empowered to employ agents to do such work, as much as to accomplish its ordinary purposes and business. It sufficiently appears that the defendant corporation did employ, instigate and procure the action of Ha-zen, as set forth. From this it necessarily follows that the company must be held liable for any trespass committed by her said agent in the prosecution of that employment, according to the general rule by which the master is held responsible for the conduct of his servant. That rule, as applicable to corporate bodies, has been laid down for this State, and, as we believe, in harmony with the current of authority, as follows : “We think it is well settled that a corporation is liable for the wilful acts and torts of its agents committed within the general scope of their employment, as well as acts of negligence ; and that the corporation is thus bound, although the particular acts were not previously authorized, nor subsequently ratified, by the corporation.” The Jeffersonville R. R. Co. v. Rogers, 38 Ind. 116 ; The Indianapolis, etc., R.W. Co. v. Anthony, 43 Ind. 183. An apt
The paragraph of the complaint under consideration charges directly that the alleged injury to the plaintiff was done at the instigation and procurement of the appellant, the express company. The demurrer admits the fact, and under ■such general averment, there having been no motion for a more specific statement of the facts, it was competent for the plaintiff to offer any evidence which tended to show the ‘truth of the allegation. The Ohio, etc., R. W. Co. v. Collarn, ante, p. 261; The Brookville, etc., Turnpike Co. v. Pumphrey, 59 Ind. 78 ; The Pennsylvania Co. v. Sedwick, 59 Ind. 336 ; The Cincinnati, etc., R. R. Co. v. Chester, 57 Ind. 297 ; Hildebrand v. The Toledo, etc., R. W. Co., 47 Ind. 399.
It follows from what has already been said, that the court ■committed no error in refusing the fifth instruction asked by said defendant, which was this, viz.:
“And if in this case there is no evidence that the American Express Company expressly authorized or directed any person to illegally arrest and imprison, or hold in custody, the plaintiff, William Patterson, or expressly sanctioned it, and if the jury believe from the evidence that the defendant, the American Express Company, at the time of the alleged .grievances, was a corporation engaged in doing a legitimate express business through her agents, they should find their verdict for that defendant, although they should believe from the evidence that the plaintiff had been illegally arrested and imprisoned by persons who were agents, or acting as agents, for the company.”
If true, this instruction amounts to this : That an express ■company may employ agents to pursue, arrest and prosecute, in lawful ways, those who have, or are supposed to have,
The theory of this instruction is also urged in support of' the claim that the evidence does not sustain the verdict, but it is no better as applied to the evidence than in the-instruction, and was rightly overruled in both.
The next claim is that the court erred in overruling the motion for a venire de novo; and this is claimed because the verdict is silent as to the defendant Richey. Before taking judgment on the verdict against the other defendants, as has already been stated, the plaintiff dismissed the case as to the said Richey, who made no objection thereto, and did not join in the motion for a venire de novo. We arc not able to see that the action of the court harmed the appellants. The liability of tortfeasors is not joint, but several. The action may be against all, or one, or any number of them. Separate actions may be prosecuted at the same time against the respective parties charged with the same wrong, and separate verdicts and judgments taken against them, whether for the same or for different amounts, though the plaintiff can have but one satisfaction; but, whether the judgment be joint or several, there is no right of contribution which can be enforced as between the defendants. There is, therefore, no reason for a venire dé novo in such a case, and the-law in fact does not require it.
It is. not out of the way to observe that if the complaint did not state a good cause of action against Richey, as appellants contend, there was certainly no available error in the dismissal and in the refusal of the court to grant a new venire. Had there been a verdict against said Richey-, the judgment
In the second paragraph of the complaint, besides charging the same false imprisonment as is shown in the first, it is further alleged that afterward, as an additional act of imprisonment and trespass, the defendants procured Hazen to file his affidavit before a justice of the peace, of Delaware county, Indiana, charging the plaintiff with the larceny of said money of the company; but that on the day set for trial the defendants, who were all present with counsel, refused to prosecute, and the plaintiff was discharged by the justice, etc. Complaint is made of the admission of evidence to show these proceedings. We do not perceive that error was committed in admitting this proof. The warrant on which the arrest was made was directed to any constable of the county, but was put in the hands of a special constable, who arrested the plaintiff and took him before the said justice of the peace. The arrest was therefore illegal on the face ■of the papers, and the evidence tended to show false imprisonment only, and not a malicious prosecution, as counsel ■contend. Hayden v. Souger, 56 Ind. 42.
For the same reason, there Avas no error in refusing the eighth instruction, Avherein the appellant requested the court to charge the jury to give no Aveight to this evidence, unless it Avas shown that the prosecution Avas malicious and begun without reasonable or probable cause. It Avas not a case of malicious prosecution, but an illegal one on an illegal Avarrant, involving no question of malice or of probable cause -as an essential to the fight of action.
The objection made to the introduction in evidence of the proceedings on habeas corpus does not seem to have been well taken. The facts concerning that procedure Avere averred in the complaint, and Avere connected Avith, and indeed constituted a part of, the transaction complained of. The imprisonment of the plaintiff was terminated by his discharge
Counsel in their brief also complain that the plaintiff was allowed to introduce evidence of his general character. The-question presented is not free from doubt, but we have concluded, that, under the circumstances of’ the case, evidence of the plaintiff’s general good character, and of his reputation for honesty and integrity, was admissible. It has already been shown that the alleged false imprisonment was-the arrest of the appellee upon a charge or suspicion that he had stolen a package of money from the express company. It was therefore competent for the defendants to “show in mitigation of damages, every circumstance connected with the transaction that has a tendency to show that he acted with honest motives and good faith in making the arrest,” and “that the plaintiff was strongly suspected and accused by. the public for the crime for which he was arrested.” Eggleston Damages, sec. 363. The appellants did, accordingly, present a special plea, in mitigation of damages, setting out at great length and in detail the circumstances on which they claimed to have acted, in the belief of the plaintiff’s guilt, and in support of this plea gave evidence on the trial.
Wharton, in his Law of Evidence, sec. 47, says that the “English and American courts have agreed in holding that, so far as concerns the proof in civil issues, the character of either party is as a rule irrelevant. So far has this been, carried that in actions for malicious prosecution and for false imprisonment, the defendant, to sustain the defence of probable cause, can not put the plaintiff’s bad character in issue; though this proof may be offered in mitigation of damages.” See, also, 1 Greenleaf Evidence, secs. 54, 55, 469. In Israel v. Brooks, 23 Ill. 526, followed in Blizzard v. Hays, 46 Ind. 166, it is held, that, in an action for malicious; prosecution of the plaintiff on a charge of crime, it is com-
In reason and good conscience, it must be true, that when the defendant may offer proof of the plaintiff’s bad charac
An exception was reserved to the ruling of the court in permitting the plaintiff to testify to the statements of certain parties in relation to their efforts to procure employment for the plaintiff. The testimony objected to was, in substance, that, some time before the arrest and imprisonment complained of, the plaintiff had, at St. Paul, Minnesota, spoken to one Drake, a traim-dispatcher, and one Smith, a railroad superintendent, to procure him employment, which they promised to do ; and that on his return to St. Paul, after discharge from the imprisonment complained of, said Drake told him that he had had a situation for him at sixty dollars per month, but as he, plaintiff, was not there to take it, he, Drake, had to give it up. This testimony was objected to as hearsay, and as not within the issue, there being, as is claimed, no averment of special damage on account of the loss of this opportunity to obtain employment. It is doubtless the rule that such special damage can not be proved unless specially averred. The third paragraph, however, contains an averment that the plaintiff “was prevented from securing a good paying situation in Minnesota by means of
As the judgment must be reversed on account of the error stated, it is not necessary that this opinion be extended to a consideration of other questions Avhich counsel have dis
The judgment of the circuit court is reversed, with costs,, and the cause remanded, with instructions to grant the' appellants a new trial.