Martin v. Woodlea Inv. Co.

• Decision Date: 13 December 1920
• Docket Number: No. 13647.,13647.
• Citation: 206 Mo. App. 33,226 S.W. 650
• Parties: MARTIN v. WOODLEA INV. CO.
• Court: Missouri Court of Appeals

226 S.W. 650

206 Mo. App. 33

MARTIN v. WOODLEA INV. CO.

No. 13647.

Kansas City Court of Appeals. Missouri.

December 13, 1920.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by John Martin against the Woodlea Investment Company and others. From a judgment for plaintiff, certain defendants appeal. Reversed and remanded.

Ringolsky & Friedman and Wm. G. Boatright, all of Kansas City, for appellants.

H. S. Julian, of Kansas City, for respondent.

TRIMBLE, J.

This is an action for false imprisonment. Originally the suit was against the Woodlea Investment Company, the Kresky Investment Company, and Kresky individually, but a dismissal was entered as to the Kresky Investment Company, and upon a trial verdict and judgment was had against the other two defendants in the sum of $500 actual and $1,000 punitive damages. They have appealed.

The Woodlea Investment Company, of which the defendant Kresky was the president and the principal owner, conducted a garage which was managed and controlled by said Kresky. The force employed there consisted of a white man, who acted as foreman, and three negroes. Plaintiff was one of the latter, and was employed as a washer of automobiles downstairs in the basement of the garage.

Kresky, suspecting that the privately owned automobiles kept in the garage were being used at night by his employees for their own private gain or pleasure, reported that to the police at a district station a few blocks away and asked for protection. Manifestly he suspected all of them, for he reported that "his men" were doing this, and, though asked by the officer if he had any one at the garage he could depend on to tell him, he did not act on such suggestion, and the officer thereupon told him the only thing the police could do to help him was for him (Kresky) to have somebody to watch them, the employees, "and when they take out a car, we will send over and arrest them and put them in the police court." Kresky, acting on this suggestion, then went with the officer (Capt. Whalen, who was about to go off duty for the day), to Sergt. Young, who had charge of the station for the night, and the situation was explained to him, Whalen telling Young that Kresky was "going to watch for fellows taking cars out at night, and, when he calls, send somebody over and arrest them, and we will put them in police court." Young furnished Kresky with Policeman Walker, who was to go with him and watch the garage that night. The evidence is that at the time of obtaining this policeman Kresky said his men were taking his patrons' cars out of the garage and using them for their own personal use, and he wanted an officer to go with him and arrest them, if possible. Policeman Walker thereupon went with Kresky, and together they watched the garage till near midnight. But nothing happened, so Kresky finally went away and called up the garage over the telephone, pretending that he was a prospective passenger needing the services of an automobile to take him from Thirty-Sixth and Central streets to the depot. The foreman answered the telephone and agreed upon a price of 75 cents for this service, and Kresky said he would be ready in 30 minutes. Kresky then went back to Policeman Walker, who was still on watch, and told him what had been done, and Walker thereupon went to the appointed place, and, when the foreman of the garage came therefrom in a privately owned car, Walker arrested him and took him to the garage whither Kresky had gone and where he was when the policeman and his prisoner, the foreman, arrived. The policeman then took the foreman to the police station, where he was booked for investigation, and later the charge was changed to using personal property not his own.

After the foreman was locked up, Sergt. Young (who died before the trial of the case at bar) ordered Policeman Clark to go to the garage and arrest the negroes. He went to the garage, found the two negroes, plaintiff being one of them, in the basement washing cars. He arrested them. The police station was telephoned to for the police car to be sent to the garage, and, as it was Policeman Walker's duty to haul in prisoners, he took the car to the garage and there found the plaintiff and the other employees under arrest and in charge of Officer Clark. The two policemen brought them, the prisoners, to the station. The arrest of plaintiff was made about 3 o'clock in the morning, and when he was taken to the station he was locked up.

According to plaintiff's evidence, Kresky was in the garage when Officer Clark called plaintiff up from the basement and placed him under arrest. Manifestly plaintiff's arrest was with full knowledge, consent, and acquiescence of Kresky. Certainly the Jury could reasonably find that he, being present in the garage at the time the arrest was made and the telephone message sent to the station for the car, was agreeing and consenting to the arrest, for, though the arresting policeman, Clark, came on the order of Sergt. Young, that was pursuant to the arrangement had between him and Kresky.

The next morning at the police station Kresky was there, and the foreman was brought up from his cell and questioned by Capt. Whalen, who had come on duty for the day. He finally admitted his guilt in taking the car out, but implicated the other men as being similarly guilty. Thereupon the other men, including plaintiff, were brought up and questioned. Plaintiff, in Kresky's presence, asserted his innocence, saying he had not taken out any cars. Capt. Whalen's evidence at this point is:

"Then I turned to Kresky, who was outside in the hall, and I asked him, and I said; `We will put them all in the police court and let them just thresh it out,'" and "Kresky said, `All right; whatever you say.' I says, `That is the only way to do it.' I said, `Those boys sail they didn't take them out, and this fellow says they all took them out.'"

The force of this testimony against Kresky cannot be lessened by any claim that, when Whalen turned to Kresky and asked him what to do, he referred solely to the foreman, and not to the plaintiff or to the others. For manifestly the conversation was concerning all of the men, and not the foreman merely. Besides there was no question as to his guilt. He had been caught in the act and had confessed, and there was no need of taking the other men to the police court except to ascertain whether or not they were also guilty.

When it was decided to take the men to the police court, Whalen realized that the police car at his disposal was too small to carry all of them, and he told Kresky that if he had to call the patrol wagon from another district station it would take up a good deal of time. Thereupon Kresky, who had a big car, hauled the prisoners, including plaintiff, down to the police court in his car. At the police trial Kresky was present and testified against plaintiff. The latter was fined $10. He appealed to the criminal court, where finally, after several continuances by the city, the case against him was dismissed, and he thereupon brought this action.

In addition to the foregoing, as shown by the evidence in plaintiff's favor, Kresky himself, though denying that he personally ordered any one arrested, unless perhaps the one...