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cumstances as would induce a person of ordinary prudence to honestly and fairly believe that the plaintiff had sold and disposed of his property and abandoned the country for the purpose of cheating and defrauding his creditors, and particularly the defendant, and that the defendant so honestly believed, and, acting on such belief, caused the plaintiff to be arrested, then the jury may take these circumstances into consideration in determining the amount of compensatory damages to be awarded the plaintiff; and under such circumstances the plaintiff would not be entitled to recover what is known in law as “smart money.” Fifteenth. If you find from the evidence that the defendant caused the plaintiff to be arrested by the sheriff of Ford county, or his deputy, under process issued by some judge or justice of the peace of that county, and if the plaintiff has failed to satisfy you that such arrest was maliciously made, and made without probable cause, then your verdict must be for the defendant.

The plaintiff excepted to the instructions, and each of them. The jury returned a verdict in favor of the plaintiff, assessing his damages at the sum of $15. Of this judgment the plaintiff complains, assigning error in the giving of the instructions. Waters & Ensminger, for plaintiff in error. J. P. Greer and G. N. Elliott, for defendant in error. JoHNSTON, J. 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 over the Atchison, Topeka & Santa Fe Railroad to the state of California. At the time he left Topeka, John D. Knox held an unsettled demand against him for $128. . After he had proceeded on his journey a distance of 300 miles or more, and when the train stopped for a few minutes at Garden City, then in Ford county, Kansas, he was arrested by an officer of that county, at the instigation and under the telegraphic direction of the defendant, John D. Knox. At the time of the arrest the officer informed him that if he paid the $128 due to John D. Knox, and $20 of costs, he would release him. The plaintiff refused to pay the demand. He was then taken from the train by the officer who arrested him, and his family proceeded upon the journey without him. The officer took him into custody and conveyed him back to the office of the sheriff at Dodge City, where he was held in custody for about 24 hours, when he effected his escape, and following his family he finally came up with them at Deming, New Mexico, where they had waited his coming. It is not claimed that he was guilty of any public offense, and the officer held no warrant or process authorizing him to arrest or to detain Zimmerman. There had been no civil suit instituted against the plaintiff in the county of Ford, and no order of arrest had been issued in any civil action instituted by John D. Knox against the plaintiff in the county of Ford or elsewhere. Notwithstanding this fact, the court, in its general charge, instructed the jury at great length upon the law relating to the issuance of an order of arrest against the plaintiff in a civil action. The plaintiff insists that the instructions were irrelevant, misleading, and prejudicial to his interests. In the fifth instruction the court stated to the jury that—

“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 John D. 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 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 obligation, (or debt,) 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.”

This instruction was wholly inapplicable under the testimony, and, we think, erroneous. We have searched the record in vain to find any testimony which tends in any degree to show that John D. Knox had begun any suit, civil or criminal, in Ford county against the defendant, and there is no pretense on the part of the defendant that any such suit had been instituted, nor that any order of arrest had been issued in any case against the plaintiff. The officer acted alone under the telegraphic communication admitted to have been sent by John D. Knox, directing the arrest and detention of the plaintiff, and it was conceded that whatever proceedings were had in his arrest were for the purpose of enabling the collection of the money due from the plaintiff, Zimmerman, to Knox. Under these facts the imprisonment was illegal. The only material question left in dispute for the consideration of the jury was the amount of damages for which the defendant was liable. The defendant had not alleged anything in justification, but had simply filed a general denial. No testimony was offered in justification or mitigation of the arrest, except that which may have tended to show that the plaintiff had sold his property, or was about to remove it out of the state, and to dispose of it with the intent to defraud his creditors; but if this fact had been established it would have afforded no justification for the arrest and

detention of the plaintiff in the manner stated. The court, however, by the instructions which it gave, directed the attention of the jury to these facts, assuming thereby that testimony had been offered tending to show justification of the wrongful imprisonment, and in this way diverted the attention of the jury from the real issues in the case. This direction was emphasized and repeated again and again in five of the subsequent instructions embraced in the charge, thus making it appear to be a proper and the leading question in the case.

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, and we can only account for the same on the theory that the instructions of the court confused and misled the jury. Having found in favor of the plaintiff, as they might well do under the facts in this case, he was at least entitled to the actual damages which he may have suffered in consequence of the imprisonment. This includes all expenses reasonably incurred in procuring a discharge from the illegal imprisonment, the loss of time, the interruption of business, and any bodily or mental suffering which the imprisonment may have occasioned. The jury awarded him but $15, which was the amount the plaintiff was required to pay as extra railroad fare alone in order to reach his family, as the ticket purchased by him was only good upon the train from which he had been taken. As heretofore stated, he was arrested in the presence of his family, as well as many others who were in the car with him, taken into the custody of an officer, conveyed back a distance of about 60 miles, and there held in custody for 24 hours, while his wife and children were carried westward among strangers without his care and protection. For the time lost, the interruption of the journey, and the expenses, beyond the extra railroad fare incurred in reaching his family, as well as that incurred by his family while waiting for his return at Deming, together with any suffering, bodily or mental, which the imprisonment may have caused him, there was no allowance by the jury. We are inclined to think that the charge of the court misled the jury, and the judgment must therefore be reversed and a new trial granted. (All the justices concurring.)

(34 Kan. 195)

Filed October 9, 1885.

1. DIVORCE—HABITUAL DRUNKENNESS. A man who drinks to excess may be an habitual drunkard, within the meaning of the divorce laws, although there are intervals when he refrains entirely from the use of intoxicating drinks. But before he can be regarded as an ha. bitual drunkard it must appear that the practice of drinking to excess is indulged in so frequently as to become a fixed habit with him. 2. SAME—WHO IS HABITUAL DRUNKARD. A person who frequently drinks to excess, and who becomes intoxicated whenever the temptation is presented and the opportunity is afforded him, is an habitual drunkard in the sense in which this expression is used in the statute relating to divorce.

3. SAME—EVIDENCE. Evidence examined, and held to be sufficient to sustain the finding of the court that the defendant is an habitual drunkard.

Error from Allen county. Hutchings & Denison, for plaintiff in error. G. P. Smith, for defendant in error. JoHNSTON, J. This action was brought by Elizabeth Walton in the district court of Allen county to obtain a divorce and alimony from her husband, J. E. Walton. The causes for divorce alleged in her petition were habitual drunkenness, gross neglect of duty, and extreme cruelty. The court tried the case without the intervention of a jury, and found in favor of the plaintiff upon one ground, viz., habitual drunkenness. Upon this ground the court found and stated the facts as follows: “The plaintiff and defendant were married in Bureau county, Illinois, in August, 1874, and resided there until some time in February, 1881, when they came to Kansas, and located in Allen county, in said state. During the time the parties lived in Illinois as husband and wife, defendant used intoxicating liquors to excess; sometimes he would be drunk two or three weeks at a time. For the first three months that the parties lived in Kansas the defendant in a great measure refrained from the use of intoxicating liquors, and generally his habits of intoxication were not so gross in Kansas as they were in Illinois; but after the lapse of said three months said defendant, while living in Kansas, has used intoxicating liquors to excess, and has been an habitual drunkard. When he went to town he would drink intoxicating liquors, and then come home in a state of intoxication; and he would bring home whisky in bottles and jugs, and keep it in the house or out in the stable, and as long as the whisky lasted he would be in a state of intoxication. While the defendant was in such a condition he was incapacitated from attending to his business, and he was very quarrelsome and irritable with the plaintiff. On or about August 14, 1883, the defendant went to the city of Humboldt and returned to his house in a state of intoxication. He was quarrelsome and violent to the plaintiff, and ordered her to leave his house, which she did, taking with her the little girl, Dora, and said plaintiff has

remained away from said defendant ever since. At the time plaintiff married defendant she did not know he was addicted to the use of intoxicating liquors.” As a conclusion of law the court found that the plaintiff was entitled to a divorce on account of the habitual drunkenness of defendant, and so decreed. The defendant excepted to the findings of the court, and brings the case here for review. The chief complaint he makes is that the findings are not supported by the evidence, and are contrary to law. The testimony in regard to the intemperate habits of the defendant, and the degree of his indulgence in intoxicating drinks, is conflicting. The testimony of the plaintiff is to the effect that, with the exception of a short interval in 1881, the defendant has drank to excess and intoxication with great frequency ever since their marriage in 1874. It appears that they have always resided upon a farm, and some distance away from any town; and she states that his practice, with a few exceptions, has been to get drunk as often as he went to town where liquor could be found; that he usually visited town as often as once a week, and some weeks he went there as often as two or three times. She testified that he not only came home intoxicated, but that he generally brought liquor home with him, and his intoxication would continue sometimes for several days, and always until the liquor was drank up. In this testimony the plaintiff is corroborated to some extent by other witnesses. The defendant, while admitting that he occasionally drank to excess and became intoxicated, denied that the practice was frequent or habitual with him. He produced several of his neighbors as witnesses, who testified that they had not seen him in a state of intoxication; but negative testimony of this character is not always entitled to great consideration. Its value depends largely upon the intimacy of the witnesses with the person whose conduct is in question, their intelligence, and their opportunity to observe his habit. In this case some of the witnesses were intimate with the defendant and saw him frequently, but several of them who testified that they had never seen him in a drunken condition only saw him occasionally, and had little opportunity to learn what his habits were, and their testimony, therefore, is not entitled to great weight. The weight and sufficiency of this and other testimony, however, was a question for the court below. Its finding, like the verdict of a jury, where there is legal testimony to sustain it, will not be disturbed by this court; and, without doubt, the testimony offered by the plaintiff fairly tends, and under the rule stated must be held to be sufficient, to sustain the finding made by the court. It is further contended by the defendant that the facts do not support the conclusion of the court that defendant was an habitual drunkard, within the meaning of that expression as used in the statute relating to divorce. A precise definition of this expression, ap.

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