Burlington Transp. Co. v. Josephson

• Decision Date: 19 February 1946
• Docket Number: No. 13179.,13179.
• Parties: BURLINGTON TRANSP. CO. et al. v. JOSEPHSON.
• Court: U.S. Court of Appeals — Eighth Circuit

153 F.2d 372 (1946)

BURLINGTON TRANSP. CO. et al. v. JOSEPHSON.

No. 13179.

Circuit Court of Appeals, Eighth Circuit.

February 19, 1946.

J. W. Weingarten, of Omaha, Neb. (H. R. Hanley, of Rapid City, S.D., Francis J. Parker, of Deadwood, S. D., and P. E. Boslaugh, of Hastings, Neb., on the brief), for appellants.

Julius Skaug, of Mobridge, S. D. (H. F. Fellows, of Rapid City, S. D., Pat Morrison, of Mobridge, S. D., and Tom Eastman, of Rapid City, S. D., on the brief), for appellee.

Before SANBORN, THOMAS, and RIDDICK, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal by the defendants in the court below from a judgment in favor of the plaintiff-appellee for damages for false arrest and imprisonment, entered upon a verdict of the jury, in the amount of $19,500, with costs in the sum of $44.50. Jurisdiction is predicated upon diversity of citizenship and the amount involved.

A statement of the issues tendered in the pleadings is necessary to make clear the contentions of the parties in this court. After alleging jurisdictional facts the complaint continues:

"II. At Rapid City, South Dakota, on July 14, 1944, defendants did wilfully, unlawfully, maliciously,¹ forcibly and without right so to do, falsely arrest, imprison and restrain plaintiff and deprive him of his liberty.

"III. Plaintiff was thereby damaged and injured in his character, good name and reputation; he has suffered intense embarrassment, humiliation and mental anguish; he was compelled to incur and pay attorneys fees and costs in a large amount to obtain his release from said arrest and confinement; he was thereby necessarily compelled to be away from his business and suffered a large consequent loss, all to his damage in the sum of $100,000.00."

A motion of the defendants to require the plaintiff to state the nature and location of his business and to itemize the losses alleged to result because he was "compelled to be away from his business and suffered a large consequent loss" was denied by the court.

The defendants Burlington Transportation Company, hereinafter called the company, and S. L. Spargur, then filed a separate answer in which they admitted the jurisdiction of the court and that plaintiff was taken into custody by defendants Jensen and McCoy, and denied all other allegations of the complaint. They pleaded affirmatively that the company is a common carrier operating busses in South Dakota and other states and between Rapid City, South Dakota, and other places and that defendant Spargur is the superintendent of its business at Rapid City.

The answer further alleged in substance that the company's rules require passengers on its busses to surrender their tickets to the driver at the door before entering;² that on July 14, 1944, one of the busses was being loaded at Rapid City and while the driver was taking tickets in the usual manner the plaintiff engaged in a controversy with the driver, pushed and shoved the driver out of the way and forced his way into the bus without surrendering his ticket and thereafter refused to leave the bus though requested so to do; that although plaintiff had purchased a ticket he conducted himself in a violent, unreasonable and objectionable manner while on said bus; that by reason of his conduct his presence was objectionable, annoying and a source of danger to the passengers; that plaintiff having refused to leave the bus when requested, defendant Spargur made complaint in writing before the deputy clerk of the municipal court of Rapid City that plaintiff by his conduct had violated the city ordinance and he was thereupon taken into custody by defendants Jensen and McCoy, police officers, and shortly thereafter released upon bond.

Defendants Jensen and McCoy filed a separate answer containing allegations similar to those in that of the company and Spargur, alleging also that they are police officers of Rapid City.

At the commencement of the trial it was admitted that no warrant was issued for the arrest of the plaintiff on July 14, 1944, and the court upon motion of the plaintiff ruled that "Under the issues as they now are you the defendants will be limited in the evidence to the exclusion of any statement of what happened when he plaintiff got onto the bus." This ruling was equivalent in effect to an order striking all that part of both answers referring to the circumstances occurring at the loading of the bus prior to the arrival of the police officers and the arrest of the plaintiff. It eliminated every defense of the defendants Jensen and McCoy and left for trial only the general denial of Spargur and the company and the existence and amount of damages. In view of the nature of the tort complained of, the admission that no warrant was issued, and the allegations of the pleadings the ruling was not erroneous, as will more fully appear hereinafter.

The plaintiff called defendants Spargur, McCoy and Jensen as witnesses and showed by them that Spargur went to the police station in Rapid City about 9:45 on the morning of July 14, 1944, and "asked them to remove" plaintiff from the company's bus. He was told that he would have to sign a complaint. A complaint was drawn charging a violation of the city ordinance in that plaintiff was disturbing the peace and quiet of others by his violent and offensive conduct. Spargur did not know plaintiff's name at that time and it was not inserted in the complaint which Spargur signed, but did not swear to. No warrant for plaintiff's arrest was issued, but the complaint itself was delivered to the defendants Jensen and McCoy, police officers, who proceeded to the company's bus station where they found the plaintiff seated in the bus, "doing quite a little talking" and "waving his arms quite a lot", arrested him without a warrant, and took him to the police station where they turned him over to the chief of police. At the time of his arrest plaintiff was not disturbing the peace, and he did not violate the city ordinance in the presence of the police officers.

Josephson testified in his own behalf saying that he resides in New York City; that his business or profession is that of a physician engaged in the specialized practice relating to diseases of the eye, ear, nose and throat; that he maintains an office at 127 East 69th Street in New York City; and that he is a member of several scientific associations, has made important discoveries, and is the author of several books, pamphlets and articles in medical journals. When asked how extensive his practice has been for the past several years he answered: "Due to the nature of my discoveries I have drawn pretty much the entire world for my practice. My patients come from all of the states of the union, South America and Europe."

He testified further that he was seated in the bus and had a ticket when Officers Jensen and McCoy arrested him; that they showed him the complaint; that he observed that his name was not in it and told them that "if they carried through their procedure they would be guilty of false arrest." When he arrived at the police station he was turned over to the chief of police who treated him very courteously; he was permitted to telephone to his friend; was finger-printed and photographed; was permitted to go out and get his breakfast and was then released on bail. In all he was detained about two and one-half hours. At his request his trial was postponed until the 17th of July, at which time he was discharged.

On the question of damages he testified that he was worried and anxious and quite a bit embarrassed by the arrest; and that his attorney's fees and costs for his release were approximately $500.

Over the objection of counsel for the defendants he testified that due to his delay in returning to New York occasioned by his remaining in Rapid City for his trial he sustained large losses in connection with the remodeling of a building which he had recently purchased; that because of the delay he missed a conference with a contractor with whom he was negotiating for the remodeling, and the delay resulted in a loss of rentals and increased cost of material and labor.

The defendants offered to prove conversations between the police officers and plaintiff at the time of the arrest and the conduct of plaintiff and the circumstances occurring at the bus prior to the arrest, to all of which the court sustained the objection that the testimony was irrelevant and immaterial.

At the conclusion of the testimony the court sustained a motion to direct a verdict for plaintiff upon all issues except the existence and amount of damages on the ground that the undisputed evidence showed that the arrest was illegal in the absence of a warrant and no facts were presented which would justify an arrest without a warrant under the statutes of South Dakota.

None of the defendants moved for a directed verdict in their favor.

On this appeal the defendants contend that the court erred (1) in denying their motion for an itemized statement of damages and the nature of plaintiff's business; (2) in directing a verdict for plaintiff on all issues except the existence and amount of damages; (3) in the admission and exclusion of evidence; (4) in the instructions to the jury; and (5) in denying their motion for a new trial.

The issues are controlled by the substantive law of South Dakota. False arrest and false imprisonment are not defined in the code of that state. In Cullen v. Dickenson, 33 S.D. 27, 144 N.W. 656, 657, 50 L.R.A.,N.S., 987, Ann.Cas.1916B, 115, the Supreme Court of South Dakota said: "In this state, forms of action are abolished by statute, but substantive rights remain. Every wrongful act or omission resulting in damages recoverable in any form of action at common law, unless changed by statute, still constitutes a cause of action, and damages therefor are recoverable in a `civil action.'" In the cited case the Court said further that the primary right involved in an action for...