McCall v. McDowell. McCALL v. MCDOWELL, Circuit Court, Ninth Circuit; District of California, February T., 1867. DAMAGES.-LIABILITY OF MILITARY OFFICERS.-SusPENSION OF THE HABEAS CORPUS. In actions for false imprisonment exemplary damages are only given where it appears that the wrong of which the plaintiff complains was done with an evil intention, or from a bad motive. Where it appears that the arrest of the plaintiff was made in the course of what the defendants supposed to be their duty as public officers, and without malice, and from good motives, only compensatory damages should be given. A military officer who orders the arrest and confinement of an individual is bound to see that his subordinates, to whom the execution of the order is entrusted, use no unnecessary severity or cruelty in carrying it into execution; and he is liable in damages for oppression or undue harshness practiced by them through his neglect to superintend the course of his subordinates. Although mere words will not justify an assault and battery or a false imprisonment, yet in an action for imprisoning the plaintiff without cause, seditious language used by him, of a gross and violent character, and which influenced the defendant to order his arrest, may be proved in mitigation of damages. for Except in a plain case of excess of authority, where at first blush it is palpable to the commonest understanding that the order given is illegal, a military subordinate should be held excused, in law, acts done in obedience to the orders of his commander. This rule is equally applicable whether the legality of the order depends upon a question of fact or upon a question of law. It is competent to Congress to pass a law authorizing the president to suspend the privilege of the writ of habeas corpus; and this power extends to enable them to pass laws indemnifying or protecting officers against actions for arrests previously made. McCall v. McDowell. But the president has no authority to suspend the writ of habeas corpus, except as authorized and directed by Congress. Trial by the court. This was an action brought by John McCall against Irwin McDowell and Charles D. Douglas, to recover damages for the military arrest and confinement of the plaintiff. The facts out of which the controversy arose are fully stated in the findings of fact with which the opinion concludes. DEADY, J.-On the trial of the issue in this action, by the court, the defendants were allowed to give evidence of the circumstances attending the promulgation of Order No. 27 (see p. 241, infra), and the consequent arrest and imprisonment of the plaintiff; not as a justification, but in mitigation of damages. From the evidence the court has found the fact to be, that the defendant, McDowell, issued the order which led to the arrest and imprisonment complained of, without malice or any intention to injure or oppress the plaintiff, but from good motives and considerations involving the public peace and safety; and also, that the defendant, Douglas, acted in the premises without malice or evil intention, but in obedience to the order of his superior, and upon satisfactory information that the plaintiff's conduct had brought him within the purview of the order. These facts, although not sufficient to constitute a legal justification of the conduct of the defendants, are to be considered in estimating the amount of damages which the plaintiff is entitled to recover. The acts complained of, being done without the authority of law, the plaintiff, as a matter of law, is entitled to recover some damages therefor. But vindictive or exemplary damages are only given where it appears that the wrong complained of was done with an evil intention or from a bad motive. In the present case, no such inten McCall v. McDowell. tion or motive can be attributed or imputed to either of the defendants. It follows that the plaintiff is only entitled to recover damages for the necessary consequences of the act complained of-what the law calls. compensatory damages. Still what are merely compensatory damages, in a case like this, is difficult of determination, and is, after all, a matter of opinion, not to say conjecture, rather than direct proof. The only loss which the plaintiff sustained, that can be at all accurately computed and compensated in money, is his loss of time and expenses. What his time was worth does not directly appear, and can only be inferred from his occupation and position in life. Allowing him for this, at the rate of five dollars per day for twenty-one days, which includes the two days that he was in the custody of the civil authorities, would make the sum of one hundred and five dollars, which, added to his expenses and counsel fees, would amount to two hundred and fifteen dollars. In estimating the damages of the plaintiff, beyond this amount, there is no guide but the judgment, and the rule that they are to be given as a compensation to the plaintiff and not as a punishment of the defendants or an example to others. In estimating the damages of the plaintiff beyond his expenses and loss of time, I have been materially influenced by the facts, that while in the custody of the provost marshal in San Francisco he was confined one night in the common guard house in company with drunken soldiers, and that while he was in custody at Fort Alcatraz he was compelled to labor in common with military culprits. The treatment of the plaintiff in these respects, was, to say the least, oppressive and uncalled for. True, it does not appear that this was done with the knowledge or approbation of defendant, McDowell, but so far as appears, it would seem that he did not expect or intend that " political prisoners" should be required to labor while at Fort McCall v. McDowell. Alcatraz. The plaintiff was not in the actual custody of the defendant, McDowell, but of his subordinates, and his treatment in these respects was the direct act of the latter and not the former. Yet, McDowell, having caused the arrest and imprisonment, ought to be held responsible for whatever injuries and indignities the plaintiff suffered thereby, in consequence of his neglect or omission to provide against the same. The provost marshal's office and Alcatraz were within the command and under the authority of McDowell, and having caused the imprisonment of the plaintiff, he should have taken some precaution to prevent his being treated with undue harshness and severity while in custody at these places. In Dinsman v. Wilkes, 12 How. 405, which was an action brought by a marine against Commodore Wilkes, for illegal imprisonment in a jail at Honolulu, the supreme court say, that "it was his duty, through proper and trustworthy officers, to inquire into his situation and treatment, and to see that it was not cruel or barbarous in any respect." It is proper to add that the court held Wilkes to something more than the ordinary responsibility of a commanding officer in that respect, because "he had placed him out of the protection which the ordinary place of confinement on shipboard afforded, in a prison belonging to and under the control of an uncivilized people." So it appears to me in this case, the plaintiff being a private citizen not belonging to the military forces, nor under condemnation as a criminal, when the defendant, McDowell, caused him to be imprisoned with military culprits and persons subject to military law and discipline, it was his duty to provide that the plaintiff should not be confounded with them and treated like them. And although, as I have said, I am satisfied that the defendant, McDowell, neither expected or intended that the plaintiff should be subject to any treatment or discipline beyond what was necessary and McCall v. McDowell. proper to restrain him of his liberty for the time being, yet as such treatment and discipline were among the probable consequences of the plaintiff's confinement, when and where it took place, if not provided against by the department commander, I think he must be held responsible for it. 2 In considering the question of damages, I have also taken into account the conduct of the plaintiff, which directly provoked his arrest. I refer to the gross and incendiary language uttered by him on the public highway, on April 20 and 29. Of course I do not mean to assert that the utterance of these words by the plaintiff, as the law then stood and still stands, was technically a crime. Such utterance did not constitute a crime, and therefore was not a legal cause of arrest. Yet in actions for injuries to the person, the misconduct of the plaintiff by which such injury is provoked is always considered in mitigation of damages. Greenl. Ev. § 267. Mere words do not constitute an assault, and therefore will not justify a battery, yet when the words are calculated to provoke and do provoke the battery, they may be given in evidence to mitigate the damages. If one calls another a liar, this does not justify an assault by the insulted party; yet if an assault follow in consequence of the insult, the provocation must be considered in estimating the damages. This rule, it seems to me, may be properly applied in this case. If the plaintiff had uttered these words in the immediate presence of General McDowell, and the latter had knocked him down on the instant, the law would have allowed the provocation to be shown in mitigation of the damages resulting from the illegal blow. In this case the arrest and imprisonment of the plaintiff, although without authority of law, was, I may say, procured and provoked by conduct on his part at once dangerous and disgraceful, and well calculated at that moment of intense public feeling and |