Francis H. (Francis Hermann) Bohlen.

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ant went to meet him and then followed him to the place of trial; Tracy v.
Seamans, 26 N. Y. Weekly Dig. 117 (1887), defendant served a warrant on
plaintiff who, after the defendant had left, went with her husband before a
justice as the defendant had requested; Searls v. Viets, 2 Thomps. & Cook,
224 (N. Y. Sup. Ct. 1873) ; Courtoy v. Dozier, 20 Ga. 369 (1856), where the
constable while not guarding the plaintiff came with him and stopped at his
house, where the constable gave the plaintiff permission to go home and take
tea before accompanying him to the defendant, the justice who issued the war-
rant.

When, however, the warrant is not served personally, but a message is
sent and the plaintiff in response appears and gives bail, it was held that there
was no arrest, Berry v. Adamson, 6 B. & C. 528 (1827) ; see also, Arrowsmith
V. Le Mesurier, 2 B. & P. N. R. 211 (1806).

But the mere exhibition of a warrant with the suggestion that the party
to be arrested had better come with him and fix the matter up without taking
any steps toward serving the warrant, is not an arrest, especially when the
plaintiff refused to go, Lavurence v. Buxton, 102 N. Car. 129 (1889) ; Hill v.
Taylor, 50 Mich. 549 (1883).

It is not necessary that the defendant have a warrant or other prima
facie authority to detain the plaintiff; it is enough if the defendant leads the
plaintiff to so believe and the plaintiff in consequence submits to the defend-
ant's supposed authoritv, Wood v. Lane. 6 C. & P. 774 (1834) : Whitman v.
A. T. & D. F. R. Co., 85 Kans. ISO* (1911).

It is not enough thjft the plaintiff fears that force will be applied by the



BRUSHABER Z'. STEGEMANN. 3I

BRUSHABER v: STEGEMANN.

Supreme Court of Michigan, 1871. 22 Mich. 266.

Campbell, Ch. J. Ste^emann sued the Brushabers for assault
and false imprisonment without reasonable or probable cause. The
false imprisonment complained of was that they had compelled
him to go with them to the police office, under pretense of charging
him with a felonious assault on his wnfe, who was their sister.

An exception is taken to the charge of the court defining what
might amount to an imprisonment. The portion of the charge com-
plained of is so vaguely pointed out, that it is questionable whether
the exception is sufficient in form. But as the objection seems to be
pointed at so much of the charge, as held that an imprisonment
might exist without actual manual arrest of the person, we shall
refer to that point. The clause in question was this : "Now, a man
may be imprisoned without being taken hold of by persons that im-
prison him. Suppose, for instance, an officer comes to one of you
with a warrant, and says, T want you to come along with me,'
and you go along without his taking hold of you, โ€” that would be
an arrest. It is not necessary that he should lay his hands upon you.
So, if a man comes to you and says, Tf you don't go with me I shall
shoot you !' and if you go with him through fear, although he does
not touch you, it would be an imprisonment. And if a man comes
to you in any other way and uses words, or accompanies them with
such an appearance that w'ould lead you to be in fear of him, or
make you comply with his demand, that would be an imprisonment.
So, in this case, if the defendants came to this place and told him
they wanted to take him to the station house, and he complied, see-
ing the two together w^ith clubs in their hands, and went with them
through fear, that would be imprisonment."^ The court then went
on to instruct them very cleariy that if they believed the defendant's
version of the transaction, which was, in substance, that they did not



defendant if he or she moves, he must be put in such fear by some word or
act of the defendant giving him reasonable cause for fear, Powell v. Fiber Co.,
150 N. Car. 12 (1908), Clark, C. J., dissenting as to whether on the facts the
plaintiff had reason to fear force.

"^ Accord: Hildebrand v. McCrum, 101 Ind. 61 (1884), plaintiflF locked in
a room and by threats of violence forced to confess to a breach of promise
of marriage and to agree to pay a sum of money therefor; Gamier v. Squires,
62 Kans. 321 (1900), defendant suspecting that plaintiff had stolen a sum of
money from him, went to his office and by threatening him with a revolver
detained him there for half an hour and forced him to open hig safe; Her-
ring V. State, 3 Tex. App. 108 (1877), plaintiff detained at his gate by a show
of weapons till he retracted certain derogatory statements which the defend-
ant alleged he had made.

A mere refusal to give up the possession of property claimed by the plain-
tiff, though in consequence he remains at the place where the goods are the
better to assert his title, is not a false imprisonment, McClurc v. State, 26
Tex. App. 102 (1888), there must be at least a threat of injury to the plain-
tiff's goods, unless he remained, made for the purpose of detaining him; but
compare State v. Smith, 7 Humph. 43 (Tcnn. 1846).



32 BIRD V. JONES.

intend to arrest plaintiff themselves, but were only waiting for a
policeman, and he voluntarily accompanied them, rather than wait
for a policeman, there was no arrest.



BIRD V. JONES.
Queen's Bench, 1845. 7 Adolphus & Ellis (AT. S.) 741.

Coleridge, J. This point is, whether certain facts, which may
be taken as clear upon the evidence, amount to an imprisonment.
These facts, stated shortly, and as I understand them, are in effect
as follows.

A part of a public highway was enclosed, and appropriated
for spectators of a boat race, paying a price for their seats. The
plaintiff' was desirous of entering this part, and was opposed by the
defendant : but after a struggle, during which no momentary deten-
tion of his person took place, he succeeded in climbing over the
enclosure. Two policemen were then stationed by the defendant
to prevent, and they did prevent him from passing onward in the
direction in which he declared his wish to go : but he was allowed
to remain unmolested where he was, and was at liberty to go, and
was told that he was so, in the only other direction by v/hich he
could pass. This he refused for some time, and, during that time,
remained where he had thus placed himself.

These are the facts : and, setting aside those which do not prop-
erly bear on the question now at issue, there will remain these : that
the plaintiff", being in a public highway and desirous of passing along
it, in a particular direction, is prevented from doing so by the orders
of the defendant, and that the defendant's agents for the purpose
are policemen, from whom, indeed, no unnecessary violence was
to be anticipated, or such as they believed unlawful, yet who might
be expected to execute such commands as they deemed lawful with
all necessary force, however resisted. But, although thus ob-
structed, the plaintiff was at liberty to move his person and go in
any other direction, at his free will and pleasure: and no actual
force or restraint on his person was used, unless the obstruction be-
fore-mentioned amounts to so much.

I lay out of consideration the question of right or wrong
between these parties. The acts will amount to imprisonment
neither more nor less from their being wrongful or capable of justi-
fication. And I am of opinion that there was no imprisonment. To
call it so appears to me to confound partial obstruction and disturb-
ance with total obstruction and detention. A prison may have its
boundary large or narrow, visible and tangible, or, though real,
still in the conception only; and it may itself be movable or fixed:
but a boundary it must have; and that boundary the party im-
prisoned must be prevented from passing; he must be prevented
from leaving that place, within the ambit of which the party im-
prisoning would confine him, except by prison-breach. Some con-



BIRD V. JONES. 33

fusion seems to me to arise from confounding imprisonment of the
body with mere loss of freedom : it is one part of the definition of
freedom to be able to go withersoever one pleases ; but imprison-
ment is something more than the mere loss of this power; it includes
the notion of restraint within some limits defined by a will or power
exterior to our own.

In Com. Dig. Imprisonment (G), it is said: "Every restraint of
the liberty of a free man will be an imprisonment." For this the
authorities cited are 2 Inst. 482, Cro. Car. 210. (a) But, when
these are referred to, it will be seen that nothing was intended at all
inconsistent with what I have ventured to lay down above. In both
books,, the object was to point out that a prison is not necessarily
what is commonly so called, a place locally defined and appointed
for the reception of prisoners.^

On a case of this sort, which, if there be difficulty in it, is at
least elementary, it is not easy nor necessary to enlarge : and I am
unwilling to put any extreme case hypothetically : but I wish to meet
one suggestion, which has been put as avoiding one of the difficulties
which cases of this sort might seem to suggest. If it be said that
to hold the present case to amount to an imprisonment would turn
every obstruction of the exercise of a right of way into an im-
prisonment, the answer is, that there must be something like per-
sonal menace or force accompanying the act of obstruction, and
that, with this, it will amount to imprisonment. I apprehend that
is not so. If, in the course of a night, both ends of a street were
walled up, and there was no egress from the house but into the
street, I should have no difficulty in saying that the inhabitants
were thereby imprisoned ; but, if only one end were walled up,
and an armed force stationed outside to prevent any scaling of the
wall of passage that way, I should feel equally clear that there was
no imprisonment. If there were, the street would obviously be the
prison ; and yet, as obviously, none would be confined to it.-

WiLLiAMS, J. "If the bailifif" (as the case is put in Bull. N. P.
62) "who has a process against one, says to him, 'You are my
prisoner, I have a writ against you,' upon which he submits, turns



^ A man maj^ be imprisoned in his own house, Sorenson v. Dundas, 50
Wis. 335 (1880) ; see also Warner v. Riddiford, 4 C. B. N. S. 180 (1858),
where the plaintiff was refused permission to leave the room or go up-stairs
in his own house, except under guard of a constable.

So it is said by Thorpe, C. J., Y. B. Lib. Assessonum folio, 104, pi. 85, that:
"There is said to be an imprisonment where one is arrested by force and
against his will, although it be on the high street and not in a house." In
Fothcringham v. Adams Express Co., 36 Fed. 252 (1888), where the plaintiff,
having, as it appears, been taken into custody without a warrant, was after
his release put under guard of detectives who had control of his movements,
constantly urged him to confess and gave him to understand that force would
be used if he attempted to assert his liberty, it was held that his imprisonment
continued during the time he was so guarded.

; Wright v. Wilson, 1 Lord Raymond 739 (1699), "A. has a chamber ad-
joining the chamber of B. and has a door that opens into it, by which there
is a passage to get out ; and A. has another door which C. stops, so that A.
can not get out. by that. This is noSimprisonment of A. by C, because A. may

3 โ€” Bohlen's Cases, Vol. I.



34 BIRD 7'. JONES.

back or goes with him, though the baiUff never touched him, yet
it is an arrest, because he submitted to the process." So, if a person
should direct a constable to take another into custody, and that
person should be told by the constable to go with him, and the
orders are obeyed, and they walk together in the direction pointed
out by the constable, that is, constructively, an imprisonment, though
no actual violence be used. In such cases, however, though little
may be said, much is meant and perfectly understood. The party
addressed in the manner above supposed feels that he has no
option, no more power of going in any but the one direction pre-
scribed to him than if the constable or bailiff had actually hold of
him : no return or deviation from the course prescribed is open to
him. And it is that entire restraint upon the will which, I apprehend
constitutes the imprisonment.

Patteson, J. I have no doubt that, in general, if one man
compels another to stay in any given place against his will, he im-
prisons that other just as much as if he locked him up in a room :
and I agree that it is not necessary, in order to constitute an im-
prisonment, that a man's person should be touched. I agree, also,
that the compelling a man to go in a given direction against his
will may amount to imprisonment. But I can not bring my mind to
the conclusion that, if one man merely obstructs the passage of
another in a particular direction, whether by threat of personal



go out by the door in the chamber of B., though he be a trespasser by doing
it. But A. may have a special action upon his case against C." ; per Holt, C.
J., at Nisi Prius, at Lincoln โ€” the plaintiff being nonsuit; Crossett v. Camp-
bell, 122 La. 659 (1909), the plaintiff was told he must leave an enclosure
where some school boys were playing ball unless he paid an admission fee,
and one of the defendants took steps toward ejecting him, this was held not
to be an imprisonment since "free egress was 'always open to him." But if
the defendant prevents the plaintiff from leaving by the only exit known to
the latter, the defendant being aware of his ignorance of any other means of
egress, the defendant is guilty of false imprisonment if he does not inform
the plaintiff how to get out, and if the plaintiff be an invitee upon the defend-
ant's premises, this is so though the defendant lawfully prevented him from
using the only exit known to him, Talcott v. National Exhibition Co., 144 N.
Y. App. Div. 337 (1911), a person coming to a base ball park to buy tickets
for a game was not allowed to leave by the usual gates because of the great
crowd flocking in, no one showed him any other way out and it was an hour
or more before he found his way out.

The Texas Criminal Code, Paschall's Digest, ยง 2169,. provides that "it is
sufficient imprisonment to stop a man from going in any direction he may see
proper; and it is not necessary that he be detained in any particular spot, so
he is prevented from moving from place to place, or in the direction he wishes
to go." So in Woods v. State, 3 Tex. Crim. App. 204 (1877), it was held a
false imprisonment to forbid the prosecutor to plow in a field claimed by both
defendant and himself.

In many cases there are dicta which seem 'to adopt the opinion of Den-
man, C. J., as that in Comer v. Knowles, 17 Kans. 436 (1877), "false irnprison-
ment is necessarily a wrongful interference with the libertv of an individual"
and a charge of the trial court was approved in Hawk v. Ridgway, 33 111. 473
(1864), that it is sufficient to show that the defendant "prevented (the plain-
tiff) from going where he wished or preventing him from doing what he de-
sired," but in every such case there was that "entire restraint" upon the plain^
tiff's will spolcen of by Williams, J., in the principal case.



BIRD V. JONES. 35

Violence or otherwise, leaving him at hberty to stay where he is or
to go in any other direction if he pleases, he can be said thereby to
imprison him. He does him wrong, undoubtedly, if there was a
right to pass in that direction, and would be liable to an action on
the case for obstructing the passage, or of assault, if, on the party
persisting in going in that direction, he touched bis person, or so
threatened him as to amount to an assault. But imprisonment is,
as I apprehend, a total restraint of the liberty of the person, for
however short a time, and not a partial obstruction of his will, what-
ever inconvenience it may bring on him. The quality of the act
can not, however, depend on the right of the opposite party. If it
be an imprisonment to prevent a man passing along the public high-
way, it must be equally so to prevent him passing further along a
field into whichjie has broken by a clear act of trespass.

A case was said to have been tried before Lord Chief Justice
Tindal involving this question: (a) but it appears that the plaintiff
in that case was compelled to stay and hear a letter read to him
against his will, which was doubtless a total restraint of his liberty
whilst the letter was read.

Denman, C. J. I had no idea that any person in these times
supposed any particular boundary to be necessary to constitute
imprisonment, or that the restraint of a man's person from doing
what he desires ceases to be an imprisonment because he may find
some means of escape.

It is said that the party here was at liberty to go in another
direction. I am not sure that in fact he was, because the same un-
lawful power which prevented him from taking one course might
in case of acquiescence have refused him any other. But this liberty
to do something else does not appear to me to affect the question
of imprisonment. As long as I am prevented from doing what I
have a right to do, of what importance is it that I am permitted to
do something else? How does the imposition of an unlawful con-
dition show that I am not restrained ? If I am locked in a room, am
I not imprisoned because I might effect my escape through a wan-
dow, or because I might find an exit dangerous or inconvenient to
myself, as by wading through Avater or by taking a route so circuit-
ous that my necessary affairs would suffer by delay ?^

It appears to me that this is a total deprivation of liberty with
reference to the purpose for which he lawfully wished to employ
his liberty : and, being eff'ected by force, it is not the mere obstruc-
tion of a way, but a restraint of the persoiL The case cited as
occurring before Lord Chief Justice Tindal, as I undcstand it, is
much in point. He held it an imprisonment where the defendant
stopped the plaintiff" on his road till he had read a libel on him.
Yet he did not prevent his escaping in another direction.

It is said that, if any damage arises from such obstruction, a
special action on the case may be brought. Must I then sue out
a new writ stating that the defendant employed direct force to
prevent my going where my business called me. whereby I sustained
loss? And, if I do, is it certain that I shall not be told that I



^6 PFEIFFER V. GROSSMAN.

have misconceived my remedy, for all flows from the false imprison-
ment, and that should have been the subject of an action of trespass
and assault? For the jury properly found that the v^rhole of the
defendant's conduct was continuous: it commenced in illegality ; and
the plaintiff did right to resist it as an outrageous violation of the
liberty of the subject from the very first.

Rule absolute.



SECTION 4.
Trespass to Real Property.



PFEIFFER V. GROSSMAN.
Supreme Court of Illinois, 1853. 15 ///. Rep. 53.

Treat, C. J. This was an action of trespass quare clausiim
fregit, brought in 1853, by Pfeiffer against Grossman. The plea
was, not guilty. It appeared in evidence, that the plaintiff had title ^^^^
to a' certain tract of land ; that according to a survey made in iS54*_
a fence claimed by the defendant was on this tract; the fence en-
closed about half an acre of the tract, part of which was in timber,
and the rest in cultivation ; the fence was built by McGuire, who
was in possession previous to the defendant; prior to the survey,
there was some difficulty between the plaintiff and defendant as to
the boundary line, the latter claiming to the fence; the defendant
was dissatisfied with the survey, and continued in possession of the
ground up to the fence, although notified by the plaintiff to remove
the fence; after suit was brought, the defendant caused another
survey to be made, which agreed with that made in 185 1. It was
stated by the plaintiff's counsel, that the suit was brought for the
purpose of establishing the boundary line between the parties. The
court refused to give these instructions : "That the putting a fence
or letting it stay on the land of another is a trespass in the eye
of the law, for which the aggrieved person is entitled to at least
nominal damages ; that the plowing up of another man's land and
cultivating it, although the land may thereby be improved, is still a
trespass in law, for which the person aggrieved is entitled to at least
nominal damages." The jury found the issue for the defendant,
and the court rendered judgment on the verdict.

The instructions not only asserted correct legal principles, but
they were strictly applicable to the case. If a party puts a fence
on another's land, or ploughs up the soil, he is liable as a trespasser.
Such acts are a violation of the owner's right of possession, to re-
dress which the law gives him an action. And the action is main-
tainable, although the owner is not substantially injured. He is
entitled to nominal damages for the intrusion upon his possession.



PFEIFFER V. GROSSMAN. 3;:

The defendant can not defeat the action, by showing that the plain-
tiff is not materially prejudiced, or even that he is actually benefited.
A right is invaded, and a wrong committed, and that is a sufficient
basis for an action. Every unauthorized entry on the land of an-
other is a trespass, for which an action will lie. The law implies
damage to the owner, and in the absence of proof as to the extent of
the injury, he is entitled to recover nominal damages. Especially
is this the case, where the suit is brought for the purpose of settling
a question of right. Dixon v. Cloui,.?.:\. Wend. (N .Y.) i88; Pas-
torious v. Fisher, i Rawle (Pa.) 27; Bagby v. Harris, 9 Ala. 173;
Plmnleigh v. Dazvson, i Gil. (Minn.) 544; Bolivar Maniif. Co. v.
Neponset Mfg. Co., 16 Pick. (Mass.) 241 ; Whipple v. The Cumber-
land Mfg. Co., 2 Story's R. 561.

The judgment is reversed, and the cause remanded.

Judgment reversed.^



RowELL, J., in Bragg v. Laraway, 65 Vt. 673 (1893), p. 683 :
"As to liability for marking the line through plaintiff's sugar-place, de-
fendant says de viinimis. But this maxim is not of universal application, but
is often limited and rendered inapplicable by other maxims, and especially by
the maxim that there is no wrong without a remedy, under which, when it is
material to the establishment or the preservation of the right itself that its in-
vasion should not pass with impunity, an action lies, although no actual dam-
age has been sustained. The test seems to be whether the act complained of
would, if repeated, operate in derogation of the right. Hence trespass qua.
clau. is maintainable for an entry upon the land of another, although there is
no real damage, because repeated acts of the kind might be used as evidence
of title, and thereby the right of the plaintiff might be injured. Broom's Legal
Max. (*203) ; Taunton, J., in Marcctti v. Williams, 1 B. & Ad. 415; Cole v.
Drew, 44 Vt. 49; Fidlam v. Stearns, 30 Vt. 443. So a commoner can maintain
an action for injury to the common by taking away manure dropped thereon
by the cattle, though his proportion of the damage be only a farthing, for by
repeated acts of that kind a mere wrong-doer might, in course of time, estab-
lish evidence of a right of common. Pindar v. IVadsworth, 2 East. 154. In



^Accord: DixonjL_Clow , 24 Wend. 188 (N. Y. 1840), where it was
"evident that the action was brought for the purpose of trying the extent of
the defendant's right." Every unauthorized entry upon the land of another
is a trespass, and whether the owner suffer much or little he is entitled to a
verdict for some damages, Dougherty v. Stcl'p, 1 Dev. & Battle 371 (X. Car.
1835), defendant entered the plaintiff's unenclosed land with a surveyor and
surveyed part of it, claiming it as his own; Brozcn v. Mantcr, 22 X. H. 468
(1851), defendant dragged trees across plaintiff's land. "The gist of the ac-
tion trespass is the disturbance of possession ;" Attwood v. Fricot, 17 Cal.
37 (1860), entry upon mining claim, defendant denies plaintiff's title and avers
title in himself. Baltimore & Ohio R. Co. v. Boyd, 67 Md. 32 (1887), p. 40,
defendant R. R. Co. laid tracks on plaintiff's land.

This is equally so when the action is on the case brought by a reversioner
out of possession, who could therefore not bring trespass q. c. f., against one
erecting a dam on adjacent land so as to back up the water into a mill race on
the land which the plaintiff had the reversion, Ripka v. Sergeant, 7 W. & S.