104 Neb. 539 | Neb. | 1920
Action against the defendant Hutter, as sheriff of Sarpy county, and his hondsmen, the Lion Bonding & Surety Company, based on alleged abuse of process and oppression in office exercised by the sheriff in the arrest and confinement of the plaintiff. Verdict for the plaintiff, and defendant appeals.
Defendant contends that the evidence does not sustain the verdict. Plaintiff lives at Bellevue, Sarpy county, Nebraska. In the fore part of January, 19.17, plaintiff’s son-in-law filed complaint against him, charging him with assault and battery. Plaintiff was an acquaintance of the sheriff. The sheriff, instead of making the ordinary arrest and taking the plaintiff into custody, notified him that he held a warrant for his arrest, and requested him to appear the following morning at 9 o’clock, which plaintiff did. Plaintiff was released on personal recognizance, and appeared for trial on January 11, at which time the complaint was dismissed and he was discharged.
On the same day the county attorney prepared and filed a second complaint, based on the same charge. A warrant for plaintiff’s arrest was regularly issued and placed in the hands of the sheriff. On the following day the sheriff appeared at the home of plaintiff at Bellevue and placed him under arrest. Plaintiff asked if he would be able to return that evening, and was informed by the
Further evidence was introduced tending to show that defendant had, a few days before the arrest, made statements showing ill will toward plaintiff and to the effect-that he was going to “get him.” The evidence, taken as a whole, was sufficient to raise an issue of fact as to whether the defendant, after making the arrest, failed to bring the plaintiff before the magistrate “forthwith,” as ordered by the warrant, and whether he unnecessarily confined the plaintiff in the South. Omaha jail, and unreasonably detained him there, with indifference to, or with wilful disregard of, plaintiff’s rights and interests. It was the duty of the sheriff to act in strict compliance with the law and the direction given him by the warrant, and to bring his prisoner before the magistrate “forthwith,” which means “within a reasonable time and without unnecessary delay,” as the trial court properly instructed. A warrant does not protect an officer from
The defendant next complains that it was error to admit, over defendant’s objection, the testimony we have, mentioned tending to show statements by the defendant, made prior to the arrest, evincing ill will toward plaintiff. ■ It must be remembered, however, that this is not, strictly speaking’, a case of false imprisonment, but the gist of this action is the wrongful act of the officer while in the execution of a valid warrant. The warrant, regular and valid on its face, would be a complete defense to an action for imprisoning the plaintiff under it, except for the wrong committed by the officer in its execution. Where the officer acts in good faith and without a disregard for duty, the warrant is his protection. 32 Cyc. 542; Leger v. Warren, 62 Ohio St. 500, 51 L. R. A. 193. That there must be some wilful departure from duty is recognized in the cases above cited, although as it is said in the case of Blocker v. Clark, supra: “If the officer act in good faith, he is protected; but good faith may be negatived in other ways than by proof of spite or recklessness. The mere wait of ordinary care is in some circumstances inconsistent with good faith.” It was therefore proper, as we view it, that this testimony should have been admitted. It had some bearing upon the question of whether or not the defendant’s treatment of the plaintiff was consistent with good faith, or. whether his actions were through a wilful or intentional disregard of duty.
Defendant complains of improper conduct on the part of plaintiff’s counsel in argument to the jury. Statements were made of matters outside the record with reference to the credibility of police officers in criminal cases. Counsel said that it was a rule of law that their testimony should be taken with great care and caution. He alluded to the “police probe” and “conditions” of the police department of the city, and, referring to one of defendant’s witnesses, exclaimed: “Do you know
■ We do not believe that the statements of counsel were of such a character that they would, in the face of the admonition of the court to disregard them, constitute such flagrant misconduct as to warrant the granting of a new trial. Skagit Railway & Lumber Co. v. Cole, 2 Wash. 57.
Defendant further complains that the trial court admitted in evidence over objection testimony to the effect that plaintiff had a family consisting of a wife and eight children. This testimony, we must hold, was improperly admitted. Though in one state it has been held that such evidence is admissible in a ease of this kind, as tending to throw light upon the degree of mental humiliation the person wrongfully imprisoned would suffer (Dodge v. Alger, 53 N. Y. Super. Ct. 107), our court, in accord with the decisions in other jurisdictions, seem committed to the rule that the admission of such evidence is erroneous. Kendall v. Aleshire, 28 Neb. 707; Bergeron v. Peyton, supra; Hotz v. Rediske, 116 Wis. 353; Carlile v. Bentley, 81 Neb. 715.
In the instant case, the fact that plaintiff had a wife
The verdict appears to be excessive. The plaintiff was properly arrested and taken into custody. His right to damages rests solely upon unnecessary delay in bringing him before the magistrate. His testimony shows that he was treated in a courteous and gentlemanly manner by the defendant. At the time in question the weather was severely cold, and plaintiff’s testimony shows that the jail at South Omaha was cold, and that he became sick and infested with vermin; that he was able to earn $7.50 a day, and that he was rendered incapable of performing any work for a month. Damages to reputation are not involved. The jury’s verdict was for $3,000. That the jury was actuated by passion or prejudice or undue sympathy for the plaintiff' or his family seems clear. Kendall v. Aleshire, supra; 19 Cyc. 372.
We recommend that the judgment be reversed and the cause remanded for further proceedings, unless the defendant shall, within 40 days, file a remittitur in the sum of $1,500; but that, in case such remittitur is so made, the judgment be affirmed.
Per Curiam. For the reasons stated in the foregoing opinion, the judgment of the district court is reversed unless remittitur is filed; otherwise affirmed, and this opinion is adopted by and made the opinion of the court.
Affirmed on condition.