120 Iowa 372 | Iowa | 1903
The evidence tends to establish the following facts; The appellants are, respectively, mayor and maishal of the town of Mt. Vernon.- On the claim that certain land occupied by the plaintiff was a public street, the mayor ordered the fences, sidewalk, and other obstruc
I. It is first argued by appellants that there w.ere no allegations of special damages by the plaintiff, and that much of the testimony as to loss of time and other circum-
II. At "the close of the testimony the appellant Gormley moved for a directed verdict in his behalf, and, this motion being denied, error is assigned upon the ruling.
But it is further insisted that no cause of action was shown against Gormley because the acts complained of were performed in his capacity as mayor. Unfortunately
No excuse or justification is offered for the movement against plaintiff and his property, except the advice of counsel to the effect that it would be wise “to go on and treat the street as a public street, and throw it open to the public,” and thus bring on an action by the plaintiff in which the legal rights of the parties might be settled. This advice did not go to the extent of suggesting the arrest and punishment of plaintiff if he resisted this method of eviction, and, even if it had, we cannot conceive that advice of counsel is a sufficient justification' in an action for false imprisonment. It may be material to rebut any presumption of malice, and thus to defeat a demand for exemplary damages, but will not deprive the plaintiff of his right to recover actual damages. Frazier v. Turner, 76 Wis. 562 (45 N. W. Rep. 411); Fire Ass’n v. Fleming,
No.officer may rightfully arrest or cause the arrest of' another without warrant, except as provided by.statute. It is unnecessary, however, to discuss this aspect of the-situation, for plaintiff was charged with no offense, and appellants do not plead or seek to prove any act on his part exposing him to arrest. So far as shown, he was upon his-own premises. The officers of the town, without warrant and without legal process, and against his express protest,, proceeded to tear down his fence. He had the right to-resist this attack with the use of such reasonable force as-was necessary to protect his possession, and his arrest was clearly unauthorized and wrongful.
IIL Exceptions are taken to the instructions given the jury. Most of the questions thus presented are governed by the propositions already discussed, and we need. 5. assessment mentefpaki. not further consider them. It is said the jury were not properly instructed as to the measure of damages, in that the court after withdrawing the-claim for exemplary damages, said to the jury that, if they found for the plaintiff, they should assess in his favor such sum as, in their judgment as reasonable and prudent men, would fairly compensate him for his expenses and loss of
Nor is it necessary for us to conclude that exemplary damages were allowed. Counsel seem to proceed upon the theory that plaintiff's loss of time and expenses for
The judgment appealed from is aeeiRmed.