34 Kan. 245 | Kan. | 1885
The opinion of the court was delivered by
This was an action for false imprisonment, in which the plaintiff sued to recover, as compensatory and exemplary damages, the sum of $10,000, and in the trial below obtained a verdict and judgment for $15. It appears that on February 23, 1882, F. P. Zimmerman, who before that time had been a resident of Topeka, Kansas, converted his property into money, and started with his family on a journey
“In a civil action a party may be arrested under certain circumstances: for instance, if you believe from the evidence that the plaintiff was, in February, 1882, indebted to JohnD. Knox, and that at, or about or just before his arrest, he was selling and disposing of his property for the purpose of leaving the state, without making any preparation or provision for paying his debt or securing or satisfying it in some way, and that he was doing these things under such circumstances as*251 would lead a man of ordinary caution and prudence to fairly and honestly believe that he was selling and disposing of his property intending to leave the country and to avoid the payment of his debt — under such circumstances the defendant had the right to cause a warrant to be issued for the arrest and detention of the plaintiff in order to secure the payment of his debt. It is not alone in criminal cases that a man can be arrested, but there are circumstances under which a man can be arrested under process in civil actions — one of the character and description I have just given you. Now if you find this was the condition of affairs at the time of the departure of Zimmerman for California, and if you believe that he was acting in such a manner as would cause a man of ordinary prudence and caution to fairly and honestly believe that he was selling his property for the purpose of abandoning the country, and for the purpose of avoiding the payment of his obligations (or debts,) and that he was then indebted to the defendant, and under such circumstances Knox caused the plaintiff’s arrest under process lawfully issued for that purpose, then your verdict should be for the defendant; and whether there was any process issued in this case of the kind and character mentioned, in the county of Ford, is a matter for you to determine. The burden of proof rests with the plaintiff to show what the transaction was.”
Again, in the latter part of the fifth instruction, after telling the jury what would constitute a justification of the arrest and imprisonment, the court advises them that “the burden of proof rests with the plaintiff to show what the transaction was.” This was erroneous, in the connection in which it was used. It having been shown that the plaintiff was arrested and imprisoned at the instance of the defendant without process, and for the purpose of collecting a debt, the burden of proof was shifted and rested upon the defendant to show a justification or mitigation of the imprisonment. The charge was a lengthy one, and we think it was largely impertinent and improper. It is true that the giving of an instruction upon an abstract proposition of law, and which is irrelevant to the issues in the case, is not reversible error, unless it may be fairly inferred that the jury were misled thereby. But it appears quite probable that the inapplicable instructions here given influenced the jury to the prejudice of the plaintiff. When we come to look at the verdict in connection with the testimony, the amount assessed by the jury is singularly small,