200 F.2d 576 (7th Cir. 1952), 10552, Bucher v. Krause

Docket Nº:10552.
Citation:200 F.2d 576
Party Name:BUCHER v. KRAUSE.
Case Date:December 12, 1952
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 576

200 F.2d 576 (7th Cir. 1952)

BUCHER

v.

KRAUSE.

No. 10552.

United States Court of Appeals, Seventh Circuit.

December 12, 1952

Rehearing Denied Jan. 24, 1953.

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[Copyrighted Material Omitted]

Page 578

John J. Mortimer, Arthur Magid, Simon Herr, Marvin J. Peters, Chicago, Ill., L. Louis Karton, Head of Appeals and Review Division, Chicago, Ill., of counsel, for appellants.

Charles Keith Shay, John F. Cashen, Jr., Chicago, Ill., Dallstream, Schiff, Stern & Hardin, Albert E. Hallett, Chicago, Ill., of counsel, for appellee.

Before DUFFY, LINDLEY and SWAIM, Circuit Judges.

LINDLEY, Circuit Judge.

On Saturday, September 24, 1949, about 1:30 a.m., plaintiff, William G. Bucher, was seated alone at the bar of the Clover Bar Lounge, on North Clark Street in the Chicago loop, drinking beer and listening to piano music provided as entertainment for the patrons. He had arrived in the city about three hours earlier, flying from Tulsa, Oklahoma, his home, when he had come to marry his then fiancee, now his wife. After calling the young lady by telephone and searching for a place to lodge, he registered at the Astor Hotel, adjoining the

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Clover Bar, where he deposited his belongings. He then decided to have a bottle of beer before retiring.

Defendants Krause, Higgins, McManus and Miller were plain clothes police officers of the city. At about 12:30 a.m. on Saturday, September 24, they had questioned one Crutale, a suspected hold-up man, with reference to his participation in a robbery. In the course of their investigation, the officers were told, so they say, that the gun Crutale possessed had been obtained from a person identified only as 'Nick', with whom Crutale had an appointment to be kept shortly at the Clover Bar; that, following the meeting, he and 'Nick' intended to go out 'on a couple of jobs'; that 'Nick' was a white man, 27 to 29 years of age, about five feet, ten inches in height, weighing about 165 pounds, who generally wore a grey, checked sport jacket, frequently drank beer and was usually armed with a revolver which he carried in his belt; that Crutale had spoken to 'Nick' by telephone a short while before, having called him at the Clover Bar; that the person who had answered the 'phone was not 'Nick' but had known the latter well enough to call him to the receiver.

Equipped with this information the officers proceeded to the bar. Once there, they decided that Krause and Higgins, because they looked less like policemen, would enter the tavern in search of 'Nick', while Miller and McManus would stand guard outside.

The bar in this tavern is oval shaped. Upon entering, Krause and Higgins separated, each walking along one side of the bar. When they met, they stood momentarily, observing the patrons. They saw plaintiff sitting along. He appeared to fit the description they say they had obtained from Crutale. At no time did they inquire of the employees of the tavern or anyone else as to the identity or presence of 'Nick' or the identity of plaintiff.

Krause and Higgins 'closed in' on the unsuspecting plaintiff listening to the music, the former from plaintiff's left, the latter from his right, both from behind him. Krause grabbed his left arm, Higgins his right. They either failed to announce their purpose or, if they did so, talked in such a low tone as to be inaudible to plaintiff over the noise of the piano and the crowd. Plaintiff reacted violently. He doubled over and attempted to push himself away from the bar. Twice he wrenched his right arm free of Higgins, thinking he was being held up, as he said, and reached for his wallet in his left hip trousers pocket. In so doing he placed his right hand inside his jacket on the left side. On plaintiff's second attempt to protect his wallet, Krause acted with dispatch. He reached inside his inside right topcoat pocket, where he was carrying a revolver, and fired the gun from inside the pocket. The bullet passed through plaintiff's buttocks, injuring him seriously and permanently. The struggle was, thereafter, short-lived. Plaintiff was stretched out on the floor. He asked why he had been assaulted, but received no reply. He was searched by Krause and Higgins, and found to be unarmed. Indeed, instead of a weapon, the officers found a wealth of convincing identifying material, including a social security card, driver's license, Naval Reserve card and an American Airlines ticket, all showing convincingly that plaintiff was not the mysterious 'Nick' but rather William G. Bucher, a resident of Tulsa, Oklahoma. By this time Miller and McManus had entered the room and they, too, soon learned that plaintiff had been shot and was not the object of their quest.

Thereafter plaintiff was removed to Henrotin Hospital, where his wounds were dressed for the time being. Thence he was taken to the Cermak Memorial Hospital attached to the House of Correction, a penal institution maintained by the city and supervised by defendant Sain, as warden. He remained in this hospital for some ten hours, during which time he received further treatment. At about eight o'clock in the morning of September 24, 1949, Krause and Miller visited him. They took his written statement and, upon his inquiry as to why he was being detained, informed him that he was 'being held for suspicion as a robbery suspect.' Crutale, the accused hold-up man, was then brought to plaintiff's

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bedside, asked whether plaintiff was 'Nick' and stated unequivocally that Bucher was not 'Nick.'

Plaintiff's fiancee was unaware of the early morning happenings for, despite repeated requests by Bucher that she be notified, no effort was made to make contact with her. Consequently she arrived at the Illinois Central Suburban Station, at Randolph Street and Michigan Avenue, at nine o'clock, intending to meet plaintiff. From there they were to proceed to obtain their marriage license. She waited until 10:15 a.m. repeatedly calling her home seeking information as to plaintiff's whereabouts, and then went alone to the Marriage Bureau. There she waited for another hour and a half, again making repeated telephone calls to her home. About noon she was called into the office of the license clerk, where she learned for the first time of the whereabouts of her fiance. She was allowed to sign a license application and then departed to make final preparations for her wedding, scheduled for that afternoon.

A newspaper photographer, who had been present when the young lady was informed of the events of the night before, and a license clerk they went to Cermak Hospital, where Bucher signed the application; the marriage license was then issued. Upon his release from the hospital, at about 2:30 p.m. plaintiff was taken into custody by two uniformed policemen, who took him to the 37th District Police Station of the City of Chicago, to which Krause, Higgins, Miller and McManus were assigned. There he was interviewed by defendant Goldberg, the District Captain, who informed him that the entire affair had been a regrettable mistake but that he would have to be 'booked' for resisting arrest and could remain at large only upon posting a $50 recognizance. However, plaintiff was advised that he would be required to appear in the Municipal Court on Monday, September 26, to answer to the charge of resisting arrest. Plaintiff posted his bail money, was released, and carried out his marriage plans, albeit somewhat tardily.

Plaintiff appeared in court on Monday upon a charge of resisting arrest. He was tried by the court, Judge Cecil Smith, who, during the course of the trial, asked Assistant Corporation Counsel Barth, if there was a fund out of which plaintiff could be compensated. When counsel stated that he did not know, Judge Smith ordered a recess for the purpose of ascertaining whether such a fund existed. During this recess, plaintiff was approached by Krause and Higgins and a third man, who purported to be an attorney and who volunteered to plaintiff the advice that he had no cause of action against the police officers. The Assistant Corporation Counsel then presented to plaintiff a typewritten release, which recited that Bucher released and discharged the City of Chicago and its officers from all claims arising out of his 'arrest, detention and accidental shooting', in consideration of the voluntary dismissal of the action, City of Chicago v. William G. Bucher. Plaintiff, urged by the purported attorney, signed the release. At the conclusion of the trial, a judgment of not guilty was entered and plaintiff was refunded the $50 he had deposited.

A few days later plaintiff and his wife returned to Oklahoma. He underwent continued treatment for his wounds from the time of his release from Cermak Hospital to the date of the trial.

Plaintiff filed suit in the District Court, seeking damages of $100, 000, relying for jurisdiction upon diversity of citizenship. The complaint was in two counts. The first charged Krause, Miller, Higgins and McManus with intentional assault or, in the alternative, with negligently shooting plaintiff. The second averred that these four defendants were guilty of false arrest and unlawful search for and seizure of plaintiff's personal property; that defendant Sain was guilty of false imprisonment by reason of plaintiff's detention in Cermak Hospital; that defendant Goldberg was guilty of false imprisonment because of his detention of plaintiff at the Police Station and in threatening to detain him further upon a charge of resisting arrest unless he gave bond. The cause was tried by a jury, which returned a verdict of guilty as to all defendants in the sum of $50, 000 on the first and $65, 000 on the second.

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On plaintiff's motion a remittitur of $15, 000 was entered on count two and judgment in the sum of $50, 000 was entered on each count. This appeal followed.

Some of the numerous assignments of error go to the...

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