CHAPTER VII. § 1. PARTICULAR TORTS. Having considered briefly the history of this branch of the law, and having discussed at length the general principles which determine tort liability, as well as the remedies therefor, we proceed to the consideration of the most important classes of torts. These will be dealt with in the following order: First, torts which are directed principally against the person of the victim. Second, torts which are aimed at the property of the victim. Third, torts which are clear invasions of both the personal and property rights of another. § 2. FALSE IMPRISONMENT. Violates the Right of Personal Liberty. English law has always shown itself solicitous to guard the liberty of the individual. It, therefore, punishes false imprisonment as a crime, and gives to the person unlawfully imprisoned a civil action for damages. It is with the tort action only that we are now concerned. A person is said to be imprisoned" in any case where he is arrested by force and against his will, although it be on the high street or elsewhere, and not in a house." 1 What Constitnte Arrest. 2 "Mere words will not constitute an arrest; and if the officer says, 'I arrest you,' and the party runs away," or having a weapon in his hand, keeps the officer from touching, Lim and so gets away, there is no arrest. If, however, the officer touches him, in the attempt to take him into custody, there is an 1 Thorpe, C. J., in Year Book of Assizes f. 104, pl. 85 (1348). 2 Russen v. Lucas, 1 C. & P. 153 (1824); Hill v. Taylor, 50 Mich. 549, 15 N. W. 899 (1883); Hunting ton v. Shultz, Harper Law (S. C.) 452, 18 Am. Dec. 660 (1824). 3 Genner v. Sparks, 1 Salk, 79, 6 Mod. 173 (1704). arrest, though the officer may not succeed in stopping and holding him.* 5 Neither touching a person, nor actually overpowering him by force is necessary to an arrest. If the officer, or one purporting to act as an officer gives another to understand either by words or acts that the latter is his prisoner, and the party acquiesces in the arrest and submits his will and surrenders his liberty to the officer, there is an imprisonment. One is not obliged to incur the risk of personal violence and insult by resisting. It has even been held that one is imprisoned, while being shadowed by detectives, if it appears he was in fact deprived of all freedom of action, and that whatever consent he gave to such restraint was an enforced consent." However, a person cannot be imprisoned, who is not cognizant of any restraint, nor whose way is obstructed but who is at liberty to go anywhere else but over this particular way, nor who is induced by false statements to go where he otherwise would not have gone,? or to stay where he otherwise would not have remained,1o nor who voluntarily places himself in a situation where another may lawfully do what results in restraining his liberty," 'Whitehead v. Keyes, 3 Allen, (85 Mass.) 495, 81 Am. Dec. 672 (1862); Anonymous, 7 Mod. 8 (1702). 5 Collins V. Fowler, 10 Al. 859 (1846); Courtoiz v. Dozier, 20 Ga. 369 (1856); Simmons v. Richards, 171 Mass. 281, 50 N. E. 617 (1898); Moore v. Thompson, 92 Mich. 498, 52 N. W. 1000 (1892); Pike v. Hanson, 9 N. H. 491 (1838); Browning V. Rittenhouse, 40 N. J. L. 230 (1878); Gold v. Bissell, 1 Wend. (N. Y.), 210, (1828); Mead v. Young, 2 Dev. & Batt. (17 N. C.) 521 (1837); McCracken v. Ansley, 4 Strob. L. (S. C.) 1 (1849); Smith v. State, 7 Humph. (Tenn.) 43 (1846); Sorensen v. Dundas, 50 Wis. 335 (1880); Wood v. Lane, 6 C. & P. 774 (1834); see note to Hawkins v. Comm. 14 B. Mon. (Ky.) 395 (1854), in 61 Am. Dec. 151-164. Fotheringham v. Adams Ex. Co., 36 Fed. 252, 1 L. R. A. 474 (1888); cf. Smith V. State, 7 Humph. (Tenn.) 43 (1846). 'Herring v. Boyle, 1 C. M. & R. 377 (1834). 8 Bird v. Jones, 7 Q. B. 742, 15 L. J. Q. B. 82 (1845). See dissenting opinion of Lord Denman. The majority opinion declares that imprisonment" includes the notion of restraint within some 1mits defined by a will or power exterior to our own." State v. Lemsford, 81 N. C. 528 (1879). Prosecutor voluntarily went with defendant as the result of a practical joke, induced by false statement. 10 Payson v. Macomber, 3 Allen (85 Mass.) 69. Defendant induced plaintiff to go to Salem and stay there, so as not to be a witness against a third person, but no force or threat of force shown Imprisonment may be effected by one who is not an officer,12 and who does not pretend to act in an official capacity. A person who is locked in a room and forced to stay there against his will,13 or who is kept in a building by threats of another to hurt him, if he ventures out, is imprisoned.14 Unlawfulness of Imprisonment. Any imprisonment which is not legally justifiable is a false imprisonment, and subjects him who is responsible therefor, whether as principal or agent, to an action in tort for damages.15 The plaintiff in such action need not prove that the defendant acted maliciously or without probable cause, or with any wrongful intention, nor that actual harm of any sort was done to him. He makes out a prima facie case by showing the imprisonment, and it then devolves upon the defendant to prove that the imprisonment was lawful and that he was justified in what he did.17 Justification Uuder Legal Process. In a former chapter, it was shown that a ministerial officer is not liable in tort for enforcing process fair on its face and issued by a court or magistrate of competent jurisdiction.18 Accordingly, if he arrests and imprisons a person under such process, the victim cannot maintain an action for false imprisonment, although he may be entitled to an action for malicious prosecution against someone else. If, however, 11 Moses v. Dubois, Dudley (S. C. Law) 209 (1838); Spooner V. Spooner, 12 Met. (53 Mass.) 281 (1847). Defendant, in each case, carried plaintiff to sea, but the latter had ample opportunity to leave before the ship started. 12 Price v. Bailey, 66 Ill. 49 (1872); Hildebrand v. McCrum, 101 Ind. 61 (1884). 13 Woodward v. Washburn, 3 Den. (N. Y.) 369 (1846). 14 McNay v. Stratton, 9 Bradw. (Ill. App.) 215, 1881). 15 Bergeron v. Peyton, 106 Wis. 377, 82 N. W. 291, 80 Am. St. R. 33 (1900). 18 Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am. St. R. 32 (1893); Comer v Knowles, 17 Ks. 436 19 (1877); Glazar v. Hubbard, 102 Ky. 68, 42 S. W. 1114, 80 Am. St. R. 340, 39 L. R. A. 210 (1897). 17 Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; Mitchell v. State, 12 Ark. 50, 54 Am. Dec. 253 (1851), with note, pp. 258-271; Jackson v. Knowlton, 173 Mass. 94, 53 N. E. 134 (1899); Snead v. Bonnoil, 166 N. Y. 325, 59 N. E. 899 (1901); Chase V. Ingalls, 97 Mass. 524 (1867). the process is void it will protect no one who is responsible for its enforcement.20 Moreover, the protection of valid legal process may be lost by its abuse," as when it is wrongfully employed to force the imprisoned person to pay a debt,22 or to pay illegal fees.23 In such cases, the one abusing the process is treated as though he were a trespasser ab initio. "When the law has given an authority," it is said, "it is reasonable that it should make void everything done by the abuse of that authority, and leave the abuser as if he had done everything without authority." 24 It is deemed to be against "sound public policy to permit a man to justify himself at all under a license or authority allowed him by law, after he has abused it, and used it for improper purposes. The presumption of law is, that he who thus abuses such authority, assumed the exercise of it in the first place for the purpose of abusing it." 25 Process Under Unconstitutional Statute or Ordinance. An unconstitutional statute or ordinance is for all legal purposes, as if it had never been enacted.28 All proceedings under it, though nominally conducted in a court of justice, are in truth coram non judice. Process issuing from legal tribunals in such circumstances is void, and should afford no defense, either to the parties setting the proceedings in motion, or to the officers enforcing the process. Such 338, 70 N. W. 905, 37 L. R. A. 222, 67 Am. St. R. 399 (1897, with note, pp. 408--427. 20 Flumoto v. Marsh, 130 Cal. 66, 62 Pac. 303, 509, 80 Am. St. R. 73 (1900); Clyma V. Kennedy, 64 Conn. 310, 29 At. 539, 42 Am. St. R. 194; Comm. v. Crotty, 10 Allen (Mass.) 403 (1865); Wachsmith v. Merch. Nat. Bk. 96 Mich. 427, 56 N. W. 9; 21 L. R. A. 278 (1893); West v. Cabell, 153 U. S. 78; 14 Sup. Ct. 752 (1894). For the distinction between void process, irregular process and voidable process, see Bryan v. Congdon, 86 Fed. 221; 57 U. S. App. 505, 29 C. C. A. 670 (1898); Everett V. Henderson, 146 Mass. 89, 14 N. E. 932, (1888); Neinitz v. Conrad, 22 Or. 164, 29 21 Wood v. Graves, 144 Mass. 365, 11 N. E. 567, 59 Am. R. 365 (1887); Caselton V. Taylor, 50 Vt. 220 (1877). "Grainger v. Hill, 4 Bing. N. C. 212 (1838); Holley v. Mix, 3 Wend. (N. Y.) 350, 20 Am. Dec. 702 (1829); Baldwin v. Weed, 17 Wend. (N. Y.) 224, 234 (1837). 23 Robbins v. Swift, 86 Me. 197, 29 At. 981 (1894). 24 Allen v. Crofoot, 5 Wend. (N. Y.) 506 (1830). 25 State V. Moor, 12 N. H. 42 (1841). 26 Cooley, Principles of Constitutional Law (1st Ed.) 155; Sumner v. Beeler, 50 Ind. 341 (1875). is the holding in some jurisdictions.27 In others, however, it has been held that not only the judicial officers, who have sustained the constitutionality of the statutes or ordinances, are free from liability to tort actions, as upon the principles, heretofore stated, they would be,28 but that ministerial officers, enforcing process in such cases, are also protected.29 Even judicial officers are liable for false imprisonment, when they issue an order of arrest and procure its enforcement, without color of legal authority or jurisdiction.30 Arrest Without a Warrant-(a) By Peace Officers. In order to prevent the escape of criminals and to bring them to justice promptly, the law permits their arrest without a warrant. A person who is guilty of a breach of the peace, may be arrested by a peace officer, who is present, even though the latter is "the person upon whom the peace is broken." 31 Generally speaking the arrest of one who has been guilty of a breach of the peace, is not justified after he has escaped from the place, or peace has been restored.32 But so long as the conduct of the wrongdoer is such as to show that the public peace is likely to be endangered by his acts, his arrest without a warrant is justifiable. 33 At common law, petty criminal offenders who are not guilty of a breach of the peace, are not subject to arrest without a warrant, 27 Sumner v. Beeler, 50 Ind. 341 (1875); State v. Hunter, 106 N. C. 796, 11 S. E. 366, 8 L. R. A. 529 (1890); Barling v. West, 29 Wis. 307, 9 Am. R. 576 (1871); Campbell v. Sherman, 35 Wis. 103 (1874). 28 Supra, Chap. III. cf. Roth v. Shupp, 94 Md. 55, 50 At. 430 (1901). 29 Frammel v. Russellville, 34 Ark. 105, 36 Am. R. 1 (1879); Brooks v. Mangan, 86 Mich. 576, 49 N. W. 633, 24 Am. S. R. 137 (1891); Tillman v. Beard, 121 Mich. 475, 80 N. W. 248 (1899). Persons, called upon by an officer to assist him in enforcing void process, and who do assist in ignorance of the character of the process, are protected in some states. Reed v. Rice, 2 J. J. Marshall (Ky.) 44; 19 Am. Dec. 122 (1829); Firestone v. Rice, 71 Mich. 377, 38 N. W. 885 (1888); but not in others, Oystead v. Shed, 12 Mass. 506, 511 (1815); Elder v. Morrison, 10 Wend. (N. Y.) 128 (1833). 30 Stephens v. Wilson, 115 Ky. 27, 72 S. W. 336 (1903). 31 Anonymous Y. B. H. VII, f. 6, pl. 12 (1490). 32 Regina v. Walker, Dearsley Cr. Cas. 358 (1854); Wahl v. Walton, 30 Minn. 506 (1883); Quinn v. Heisel, 40 Mich. 576 (1879); State v. Lewis, 50 Ohio St. 179, 33 N. E. 405 (1893). 33 Timothy v. Simpson, 1 C. M. & R. 757, 6 C. & P. 499, 5 Tyrr. 244 (1835); Loggins v. Southern Ry., 64 S. C. 321, 42 S. E. 163 (1902). |