18 Ohio St. 81 | Ohio | 1849
Lead Opinion
The simple question, arising on this record, is whether a promise of indemnity of this kind is valid ?
The general rule on the subject is, that agreements to perform, or indemnify for the performance of, unlawful acts, are void. Another rule,' of a kindred character, is, that there can be no contribution between wrong-doers.
There are, however, exceptions to these rules, where a contract of indemnity has been held good, notwithstanding the act done, which formed the consideration, was illegal, and the person doing it liable to the party injured, on the ground that the party doing the act did not know of its illegality, and might reasonably have believed it to be legal.
It is contended by the plaintiff’s counsel that this case comes within the exception, and we have been referred to a number of cases which are said to be analogous to the present; where the
The case of Coventry v. Barton, 17 Johns. Rep. 144, is relied on. That was a case where the person indemnified was called on by the overseer to work on the highway, and ordered to remove a gate that stood across the road, and a promise of indemnity was given him by the overseer. On a recovery against him in trespass, he was permitted to recover on his contract of indemnity against the overseer. That case differs from the present one in this, that it was a trespass to property, whereas this was a direct assault on the person; that was a case where the person committing it, at the time was engaged in doing (what he was told to do, to wit,) work on the roads, under the direction of the overseer, who was supposed to know what was to be done, and who, for the time being, had the right to control his labor. The same may be said of the most of the cases cited. They are cases of trespass to real property, where the person committing the trespass, and receiving the indemni ty, was engaged in his usual occupation under the direction of the person who indemnified him.
The case of Fletcher v. Harcourt, however, is said by counsel to be strictly analogous to the present. That was the case of an innkeeper who kept in his inn during the night, a prisoner who was brought to his house by the sheriff, who had arrested him on a commission of rebellion, the sheriff promising to indemnify him. On a recovery had by the prisoner against the innkeeper for false imprisonment, it was held that he could recover against the sheriff on his promise.of indemnity. Although a false imprisonment may be supposed to contain an assault on the person, it does not necessarily imply the use of actual force. In this case the innkeeper did not assist in the first instance in depriving the prisoner of his liberty — he had nothing to do with the arrest, but in the course of his business a prisoner is brought to his house. His business compels him to keep such persons as stop at his house; it is his duty to keep prisoners as
We have seen no case where it has been held that a contract to deprive a person of his liberty, in the first instance, or to commit an actual assault on the person, where such arrest or assault was illegal, has been held to be binding. We do not suppose that such case comes within the rule, except in cases where the person committing the arrest is an officer whose duty it is, in a proper case, to arrest persons, and who acts by some supposed legal authority.
We do not think that the fact that the plaintiff in this case acted under the direction of a justice will at all avail him for doing an illegal act. Most of the tyranny and cruelty that has been practiced in the world over the persons and property of men, has been done under some kind of official sanction. I could much sooner sympathize with a person that had committed an illegal act on his own responsibility, than with one who did it because he had the backing or countenance of official power. If a person (as the plaintiff in this case did) commits an assault on another, either for the purpose of depriving him of his liberty, or to hold him in custody after he has been taken prisoner, he should be satisfied that such interference is legal, otherwise he should heed the consequences.
We think that this contract of indemnity comes under the general rule that a contract to do an illegal act is void; and therefore affirm the judgment of the supreme court.
Dissenting Opinion
dissenting. I dissent from the opinion expressed in this case by a majority of the court.
The fourth count, in my judgment, makes a case which, if supported by proof, will entitle the plaintiff to a recovery.
It is admitted that an agreement to indemnify for the performance of an unlawful act cannot, in general be enforced:' “ As where the defendant in consideration of 20s. assumed to
“ But the act to be done must appear unlawful at the time, otherwise the promise will not be void.” Buller’s Nisi Prius 146.
Thus, where Harcourt brought one Battersey to an inn, and affirmed to the host that he arrested Battersey by virtue of a commission of rebellion, and requested the host to keep him safely over night, and promised to save him harmless, the promise was held to be binding, though the arrest and imprisonment were illegal. Story on Contracts, sec. 206.
It is said in 1 Viner’s Abridg. 299, that in commenting upon this case Hobart, C. J., said, “ it may be there is a difference between a public officer and a private man; for if the sheriff arrest a man unlawfully, and promises as before, this is a good assumpsit.”
In the case of Avery v. Salsey, 14 Pickering 374, it was held that a promise of indemnity made to the plaintiff by a person in no wise interested in the property upon which the trespass was committed, was binding; as the danger incurred hy the promisee was a valid consideration for the promise.
•In Coventry v. Barton, 17 Johnson 142, Judge Spencer after an examination of the authorities, lays down the rule “ that if the act directed or agreed to be done is known at the time to be a trespass, an express promise to indemnify would be illegal and void; but if it was not known at the time to be a trespass, the promise of indemnity is a good and valid promise.”
It is said, however, by my learned brethren that this rule must be confined to cases of indemnity for trespasses upoD property.
I can find no adjudged case that sanctions any such distinction, and I can see no propriety in adopting it in the present case.
The act which the plaintiff was called on to perform was to all appearance lawful. He was requested to lend his aid in preventing a forcible rescue from what was claimed to be a legal arn:st; he hesitated to do so, and was told by the magistrate who
But in the case under consideration, the plaintiff did not commit a punishable offense. However much he may have subjected himself to damages for false imprisonment, he could not have been found guilty on an indictment for an assault and battery. The criminal intent is wanting.
If the writ in the hands of the constable had been legally issued, as it was claimed to have been, then the plaintiff would not have committed an unlawful act by interfering to prevent the rescue. The defendant undertook to be answerable for its legality, and promised to indemnify the plaintiff. I am at a loss to see how we are to prevent usurpation, or oppression in office, on the part of magistrates, by holding the promise of indemnity made by such a magistrate to be void, and by ruling that his innocent dupe shall suffer the whole penalty of the law.
I am of opinion that the demurrer to the fourth count should have been overruled, and consequently that the judgment of the common pleas was erroneous.