14 S.D. 126 | S.D. | 1900
Lead Opinion
On May 31, 1895, the plaintiff, with her husband and children, occupied a quarter section of land in Burke township, Minnehaha county. Defendant Huston, who has not been served with process in this action, was deputy sheriff. Defendants Berdahl, Dybedahl, and Blow, the appellants, were supervisors of Burke township. On that day the road overseer of that township, appellants, and several other persons came to the northeast corner of plaintiff’s inclosed field and threatened to open and work an alleged
It is the theory of the plaintiff that her arrest was illegal, or, if not illegal in the beginning, it became so by reason of her unlawful detention, and that appellants are liable because they directed the conduct of the deputy sheriff. Appellants deny that they directed or influenced the conduct of the deputy sheriff; contend that the plaintiff committed a crime in the presence of that officer; that there was probable cause for her arrest, and that she requested to be taken to Sioux Falls, in place of being immediately taken before a justice of the peace in her own township. Hence the law applicable to cases of malicious prosecution is involved, as well as the law applicable to cases of false imprisonment.
Was the arrest illegal? Whenever any public highway becomes obstructed or unsafe from any cause, the road overseer has power, and it is his duty, to call upon any and all persons liable to poll tax in his district to come forth with such tools or teams as the overseer may direct, and work upon such highway, in removing obstructions or repairing dangerous places; and any road overseer who fails to perform this duty is subject to a criminal prosecution.
If appellants did not cause the plaintiff’s arrest, of course, they are not liable, in any view of the case. But, if they did cause her arrest, although there was probable cause for so doing, and the arrest was originally legal, a further issue arises — as to whether the conduct of the deputy sheriff subsequent to the arrest was such as to render him liable, and if so, whether appellants are responsible for such conduct. It was the duty of the deputy sheriff to take the plaintiff before a magistrate without unnecessary delay. Comp. Laws, § 7133. If, however, a person under arrest requests delay, or desires to be taken before some magistrate other than the one nearest and most accessible, and the officer complies with such request, neither he nor one who advises him in so doing can be held liable for false imprisonment. Concerning what was desired by the plaintiff in this respect, there was a direct conflict in the evidence, and the issue thus presented was not submitted to the jury. It was an issue raised by the pleadings, which should have been submitted under proper instructions. Another substantial feature of this controversy, which seems to have received no attention from counsel or court below, is the prcsumtion in favor of the plaintiff arising from the presence of her husband when the alleged crime was committed. It should be considered if the action shall be tried again. Comp. Laws, §§ 6221, 6223; Neys v. Taylor, 12 S. D. 488, 81 N. W. 901. Though the jury should find that the plaintiff was detained in custody an unreasonable time without her consent, of course, neither of the appellants would be liable for such detention, unless it should be proved by a fair preponderance of the evidence that he was responsible for the wrongful conduct of the officer subsequent to the time of the arrest.
Dissenting Opinion
(dissenting). At the time of the occurrence complained of, and previous thereto, as stated in the majority opinion, there was much controversy about the real location of this road; and at the trial testimony was offered by the counsel for appellants for the purpose of showing that by certain statutory proceedings the road was established according to a survey made in 1878 by Cyrus Walts, but the jury has not so found. On the previous day the opening of this fence was objected to by a number of people who were now present, and appellants had procured the attendance of the deputy sheriff for the purpose of preventing further interference. From evidence sufficient to justify the jury in so finding, it was shown that the arrest was made without a warrant or probable cause, and at the instance of appellants, who expressly directed the officer to “arrest that woman and take her off the ground.” She was taken into custody on Saturday about noon, and in the afternoon of that day, leaving her house in charge of two small children, was conveyed by team first' to Dell Rapids, and then in the same manner to Sioux Falls, a distance of twenty-five miles from her residence, where she was confined in jail until some time on Monday following, when she was taken back to Dell Rapids in the custody of the officer, and from thence to the residence of a justice of the ' peace in Burke township, verv near her home, where, after being retained two or three hours