CHAPTER IX FALSE IMPRISONMENT Statement of the duty. A owes to B the duty not to impose a total restraint upon B's freedom of locomotion. The terms writ,' warrant,' 'precept,' and 'process' are, in this chapter, used as equivalents, wherever it is not necessary to distinguish them. The term 'irregular,' as applied to a writ, refers to some improper practice on the part of the person who obtains the writ, as distinguished from 'error,' in decision'. A writ is sometimes absolutely void for irregularity, sometimes only voidable. Since 1869 arrest in civil suits has been prohibited, except in a few special cases, so that the particular facts of many of the older authorities no longer appear; but the principles upon which they rested have not been changed. § 1. NATURE OF THE RESTRAINT: WHAT MUST BE A false imprisonment consists in the total, or substantially total, restraint of a man's freedom of locomotion. Definition. restraint will make a prima facie case. 1 See Everett v. Henderson, 146 Mass. 89. Proof of such The act may man within 2 As a writ in execution of a judgment which has been discharged to the knowledge of the person suing out the same. (New York), 242. 3 32 & 33 Vict. c. 62, § 4. Deyo v. Van Valkenburgh, 5 Hill 4 Bird v. Jones, 7 Q. B. 742, 752 prison walls, but also by restraint imposed upon him in his own house or room, or in the highway, or even in an open field1. Contact. Any general restraint is sufficient to constitute an imprisonment; and though this be effected without actual contact of the person, it will be presumptively actionable. Any demonstration of physical power which, to all appearance, can be avoided only by submission, operates as effectually to constitute an imprisonment, if submitted to, as if any amount of force had been exercised. For example: The defendant, an officer, says to the plaintiff, 'I want you to go along with me,' with a show of authority, or of determination to compel the plaintiff to go. This is an imprisonment, though the defendant do not touch the plaintiff 2. Power of A person may also be imprisoned, though he had not the full power of locomotion before the restraint was imposed. It appears to be sufficient if his will has been so overmovement. come that he would not attempt to escape the restraint if he had the physical ability of locomotion. For example: The defendant, a creditor of the plaintiff, goes with an officer to the plaintiff's house, in order to compel him to give security for or make payment of his debt, which is not due. The plaintiff is found sick in bed; whereupon the officer tells him that they have not come to take him, but to get a certain article of property belonging to the plaintiff, though, if he will not deliver that or give security, they must take him or leave some one in charge of him. The plaintiff, much alarmed, gives up the article. This is an imprisonment3. The submission therefore to the threatened and reasonably apprehended use of force is not to be considered as a consent to the restraint, within a maxim which has frequent application in the law of torts, 'volenti non fit injuria.' And the imprisonment continues until the party is allowed to depart, and is involuntary until all general restraint ceases, and the means of effecting it are removed. 1 Lib. Ass. (22 Edw. 3), p. 104, pl. 85. 2 Brushaber v. Stegemann, 22 Michigan, 266, 268. See Hill v. Taylor, 50 Michigan, 549. 3 Grainger v. Hill, 4 Bing. N. c. 212. 4 Johnson v. Tompkins, Baldwin (U. S. Federal Court), 571, 602. It is not enough that restraint is imposed upon one's freedom of proceeding in a particular, desired direction. The detention must be such as to cause escape Circumscribin any direction ing restraint. to amount to a breach of the restraint; the restraint should be circumscribing, except perhaps where the only place of escape is an almost impassable one. For example: The defendant, an officer, stationed at a particular point to prevent persons from passing in a certain direction, restrains the plaintiff from passing that way, but leaves another way open to him, of which however he does not wish to avail himself; and thus detained the plaintiff stands there for some time. This is not an imprisonment1. Prison walls not necessary. It follows from the last proposition, and from what had been stated before, that a person detained within walls is none the less imprisoned by reason of the fact that he may make an escape through an unfastened window or door; since such an act would be a breach of the restraint. If it would not be, there is no imprisonment; supposing that the unfastened door or window affords a ready means of escape. § 2. JUSTIFICATION: ARRESTS WITH WARRANT Justifiable arrests. Supposing the restraint imposed to amount to an imprisonment, it is proper next to consider how the presumptive right of action for such an act can be overturned. How is it to be shown that the imprisonment was not unlawful? In other words, how is the act, in technical language, to be justified? This may be done in several ways, all of which however will be passed over except such as relate to the administration of justice. Of justifications of that kind the most common and the most important arises where an officer has made an arrest under a lawful warrant of a court of justice. This will 1 Bird v. Jones, 7 Q. B. 742. 'A prison may have its boundary large or narrow, invisible or tangible, actual or real, or indeed in conception only; it may in itself be movable or fixed; but a boundary it must have, and from that boundary the party imprisoned must be prevented from escaping; he must be prevented from leaving that place within the limit of which the party imprisoned could be confined.' Id. Coleridge, J. now be taken for special consideration. Arrests without warrant by officers or by private citizens will follow in a distinct section. wrong person. It is to be observed at the outset that the officer, in executing his process, must arrest the person named in it. If he do Arrest of not, though the arrest of the wrong person was made through mere mistake, it may be a case of false imprisonment. And this appears to be true, though the party arrested bear the same name as the party against whom the writ is directed. For example: The defendant, a constable, asks the plaintiff if his name is J. D., to which the plaintiff replies in the affirmative; whereupon the defendant takes the plaintiff into custody, the plaintiff not being the person intended by the writ. This is a case of false imprisonment1. If however the plaintiff, though not the person intended by the process, should do anything to mislead the officer, and cause the latter to believe that the former was the person meant by the precept, the officer commits no breach of duty in making the arrest. The plaintiff's action is a consent, and something more. For example: The defendant, a sheriff, arrests the plaintiff under process of court, upon a representation made by her that she was E. M. D., and the person against whom the writ had issued, with the intention of procuring the defendant to arrest her under his writ. The defendant, believing the representation to be true, makes the arrest. This is not a breach of duty2. person. The officer's process however should so describe the person to be arrested that he may know whom to arrest; or, rather, Description of that a person whom he proposes to arrest may know whether to resist or submit. If the warrant be defective in this particular, the officer acts at his peril in serving it; and he will be liable to any one whom he may arrest under it. For example: The defendant, a constable, arrests the 1 Coote v. Lighworth, F. Moore, 457. It is to be noticed that the plaintiff in this case did nothing to induce the officer to arrest him as the person intended. 2 Dunston v. Paterson, 2 C. B. N. s. 495. The sheriff however had detained the plaintiff improperly after discovering his mistake, and for this he was held liable. plaintiff under a warrant reciting the commission of a felony by John R. M., and then commanding the officer to arrest the said William M. The defendant is liable for false imprisonment, though the plaintiff is the person intended1. Misnomer. It follows that the officer may be liable if there be a misnomer in the warrant of the person intended, though the person actually meant was arrested, and that too (in other respects) on legal grounds. For example: The defendants cause the plaintiff, whose name is Eveline, to be arrested under the name of Emeline in the warrant. This is a breach of duty, though the plaintiff, in her proper name, was legally liable to such an arrest. But the case would have been different had the plaintiff been known alike by either name3. Tenor of The officer also loses the protection of his warrant if he fails to act in accordance with the duty enjoined by it. He must follow the tenor of his process, and not surpass his authority. For example: The defendant arrests the plaintiff beyond the precincts named in the warrant. This is a false imprisonment*. process to be followed. It is further to be noticed that, though the process and arrest be valid, the protection of the officer may be lost by Oppressive oppressive or cruel conduct. For example: The conduct. defendant, charged with a warrant simply to take the body of the plaintiff, unites with the person at whose instance the arrest is made in illegally extorting money from the plaintiff by working upon his fears. The defendant is liable for a false imprisonment. The officer's protection will not extend to any detention after the warrant has expired. The warrant, however valid at first, 1 Miller v. Foley, 28 Barbour (New York), 630. 2 Scott v. Ely, 4 Wendell (New York), 555. 3 Griswold v. Sedgwick, 1 Wendell (New York), 126. 4 This is too fundamental to have been much agitated in the courts. No authority is needed for the example. 5 Holley v. Mix, 3 Wendell (New York), 350. In such a case the process appears to be used as a mere subterfuge to cover an unlawful purpose and act. Hence it is that not merely the subsequent act but the arrest itself is unlawful. See post, chap. x. § 3, Trespass ab initio. |