Bennett et al. v. Gerk et al., 22392.

Citation61 S.W.2d 241
Decision Date20 June 1933
Docket NumberNo. 22392.,22392.
PartiesR.T. BENNETT ET AL., RESPONDENTS, v. JOSEPH A. GERK, DEFENDANT, WILLIAM F. NICKLIN ET AL., INTERPLEADERS, APPELLANTS.
CourtCourt of Appeal of Missouri (US)
61 S.W.2d 241
R.T. BENNETT ET AL., RESPONDENTS,
v.
JOSEPH A. GERK, DEFENDANT, WILLIAM F. NICKLIN ET AL., INTERPLEADERS, APPELLANTS.
No. 22392.
St. Louis Court of Appeals. Missouri.
Opinion filed June 20, 1933.

Appeal from the Circuit Court of Lincoln County. — Hon. William C. Hughes, Special Judge.

REVERSED AND REMANDED (with directions to enter a judgment in favor of William F. Nicklin for the full amount).

Creech & Creech for appellant, Nichlin.

(1) It is well settled law that Officers Groshong, Bennett, McGregor and Hammond are not entitled to participate in the reward offered over the name of Joseph A. Gerk, Chief of Police of the City of St. Louis, because said reward was a private reward and not a public reward, and to allow said officers to recover would be against public policy. R.S. Mo., 1929, secs. 3492, 3494 and 3948; Thornton v. Mo. Pac. R.R., 42 Mo. App. 58; Kick v. Merry, 23 Mo. 72; Herrington v. Crawford, 61 Mo. App. 225; Smith v. Rogers, 99 Mo. App. 262, 73 S.W. 243; R.C.L., page 1126, vol. 23; Hogan v. Stophlet, 44 L.R.A. 809 (see notes); Bushmeier v. Special Protective Rewards Committee of Arkansas Banking Ass'n, 47 S.W. (2d) 1080; Smith v. Vernon Co., 188 Mo. 501; Davis v. Millsap, 159 Mo. App. 167, 140 S.W. 751; Cornwell v. Transit Co., 100 Mo. App. 258. (2) Interpleader Nicklin was entitled to the whole of said reward because it was he who acted solely in procuring the officers to make the arrest and establishing the information relative to the identity of Barcume and Heuer, and procured the arrest of said Barcume and Heuer. Ralls County v. Stephens, 104 Mo. App. 115, 78 S.W. 291; Smith v. Vernon County, 188 Mo. 501, 87 S.W. 949; Crawshaw v. City of Roxbury, 7 Gray 274; Lovejoy v. Atchinson R.R., 53 Mo. 386; Bushmeier v. Special Protective Rewards Committee of Arkansas Banking Ass'n, 47 S.W. (2d) 1080. (3) The maxim "qui facit per alium, facit per se" is peculiarly applicable to this case. The rule is well established that one may perform the service for which a reward is offered by agent or servant or the instrumentality of another, or through the proper statutory officers such as the sheriff, his deputies and the constable. Ralls Co. v. Stephens, 104 Mo. App. 115; Crawshaw v. City of Roxbury, 7 Gray 274; Jenkins v. Kelren, 12 Gray 330; Besse v. Dyer, 9 Allen 151; Stephens v. Brooks (Ky.), 2 Bush. 137; Brennan v. Haff (N.Y. Sup.), 1 Hilton 151. (4) The court should have found under the facts and law that interpleader Nicklin is the person in real sense of the word (who apprehended, arrested and delivered Barcume and Heuer and under the law and fact is deserving of the whole of said reward). Ralls County v. Stephens, 104 Mo. App., l.c. 121; McClaughry v. King, 147 Federal 463, 7 L.R.A., New Series, 216; Shuey v. U.S., 92 U.S. 73, 23 L. Ed. 697. (5) To entitle one to recover a reward, he must have knowledge thereof, and must give the information and make the arrest and delivery with the intent and purpose of collecting the reward offered. Smith v. Vernon County, 188 Mo. 501, 87 S.W. 949; Sanderson v. Lane, 43 Mo. App. 158.

O.H. Avery and Williams & Huston for respondents R.T. Bennett, George McGregor and Jesse Groshong.

(1) "If an officer performs an act or renders extraordinary services, alike beyond and outside the limit of his ordinary official duty and for which a reward has been offered, he becomes entitled to such additional remuneration and may lawfully make claim thereto without violation of the policy of the law." Davis v. Millsap, 159 Mo. App. 167, l.c. 169; Cornwell v. St. Louis Transit Company, 100 Mo. App. 258; Cornwell v. St. Louis Transit Company, 106 Mo. App. 135. (2) There was no official duty on respondents to deliver Barcume and Heuer to the police officers of the City of St. Louis, after their arrest, and respondents are entitled to recover the reward offered for complying with this provision of the offer of reward. Smith v. Vernon County, 188 Mo. 501, l.c. 514-515; Hoggard v. Dickerson, 180 Mo. App. 70, l.c. 79. (3) It is sufficient if any essential part of the service, in complying with the provisions of an offer of reward is performed after the party claiming it had knowledge of the reward being offered and relied on the same being paid. Hoggard v. Dickerson, 180 Mo. App. 70, l.c. 78-79; Smith v. Vernon County, 188 Mo. 501, l.c. 514-515. (4) (a) The public policy rule as insisted upon by counsel for appellants can only be raised by the party who offered the reward. (b) Interpleader suits are equitable proceedings and should be determined in accord with equitable principles. Taylor v. Perkins et al., 171 Mo. App. 246, l.c. 248; Borchers v. Barckers, 158 Mo. App. 267, l.c. 271.

F.D. Wilkins and Frank Howell for appellants, R.H. Brown and E.D. Hamilton.

(1) As public officers, the sheriffs were under a bounded oath to perform certain official duties, one of which was to apprehend and arrest persons guilty of committing crime in their county, for the performance of which a legal fee or salary is provided by law. The men they were called to and did arrest were men who had robbed a bank in their own (Lincoln) county. They cannot lawfully receive, or recover a reward for the performance of this service which was their duty to discharge. Section 3948, R.S. Mo. 1929; Kick v. Merry, 23 Mo. 72; Thornton v. Mo. Pac. R.R. Co., 42 Mo. App. 58; Cornwell v. St. Louis Transit Co., 106 Mo. App. 135; Davis v. Millsap, 159 Mo. App. 167, l.c. 169; Smith v. Vernon County, 188 Mo. 510; 54 C.J., section 30, pages 786, 787-788; 34 Cyc. 1753, 1754; 23 R.C.L., page 1126, sec. 16; Taylor v. American Bank & Trust Co., 135 So. 47; Hogan v. Stophlet, 179 Ill. 150, 53 N.E. 604; Stamper v. Temple, 44 Am. Dec. 296. (2) Public policy does not permit public officers, such as a sheriff, constable or policeman, to demand rewards for services performed in line of duty though rewards were offered to the general public without restriction. Section 3948, R.S. Mo. 1929; Kick v. Merry, 23 Mo. 72; Thornton v. Mo. Pac. R.R. Co., 42 Mo. App. 58; Cornwell v. St. Louis Transit Co., 106 Mo. App. 135; Davis v. Millsap, 159 Mo. App. 167, l.c. 169; Smith v. Vernon County, 188 Mo. 510; 54 C.J., section 30, pages 786-787-788; 34 Cyc. 1753, 1754; 23 R.C.L., page 1126, section 16; Taylor v. American Bank & Trust Co., 135 So. 47; Hogan v. Stophlet, 179 Ill. 150, 53 N.E. 604; Stamper v. Temple, 44 Am. Dec. 296. (3) Interpleader Nicklin was the agent of interpleaders Hamilton and Brown. An agent is one who undertakes to transact some business, or to manage some affair for another, by the authority and on account of the latter. Lajoie v. Rossi, 225 Mo. App. 651, 37 S.W. (2d) 684, l.c. 686. (4) Agency may be created by a verbal delegation of authority. It does not depend in every instance upon express appointment and acceptance, but may be implied from words and conduct. Kaden v. Moon Motor Car Co., 26 S.W. (2d) 812. (5) Agency may be shown by course of conduct as well as by express contract. Klaber v. Fidelity Bldg. Co., 19 S.W. (2d) 758; Montgomery County v. Robinson, 85 Ill. 174. (6) Where a reward is offered for the apprehension or arrest of a criminal, that person is held entitled to the reward who furnishes information leading directly to the arrest or causes the arrest to be made by an officer, or by his own agent, or other person; a personal arrest by claimant not being necessary. 54 C.J., section 48, page 793; Ralls County v. Stephens, 104 Mo. App. 115; Montgomery County v. Robinson, 85 Ill. 174; Swanson v. Ost, 74 Ill. App. 281; Elkins v. Wyandotte County, 91 Kans. 518, 138 Pac. 578, 51 L.R.A. (N.S.) 638, Ann. Cas. 1915D, 257; Heather v. Thompson, 78 S.W. 194; Hewett v. Thompson, 78 S.W. 194; Hewett v. Lamb, 130 Ga. 709, 67 S.E. 716, 14 Ann. Cas. 800; 46 L.R.A. (N.S.) 662, 663, 667, 668; McClaughry v. King, 147 Fed. 463, 79 C.C.A. 91, 8 Ann. Cas. 856; Williams v. West Chicago Street R. Co., 191 Ill. 610, 61 N.E. 456; Haskell v. Davidson, 91 Me. 488, 42 L.R.A. 155, 40 Atl. 330. (7) One is entitled to a reward when the person making the pursuit and capture is his agent. Nicklin was the agent of Hamilton and Brown. Montgomery County v. Robinson, 85 Ill. 174.

KANE, J.


This is an action brought in the Circuit Court of Lincoln County, Missouri, to recover a reward in the sum of $2,000 for the arrest and delivery to police officers of the City of St. Louis, Missouri, of Charles Heuer and Edward Barcume, who were wanted for the kidnapping of Alexander Berg. Suit was brought by R.T. Bennett, George McGregor, Deputy Sheriffs, and Jesse Groshong, Sheriff, respectively of Lincoln County, Missouri, against Jos. A. Gerk, Chief of Police of the City of St. Louis, Missouri. After the filing of the petition, the defendant, Jos. A. Gerk, entered his appearance in Lincoln County, Missouri, and filed an answer admitting the offer of the reward and that Charles Heuer and Edward Barcume had been arrested and delivered to the police officers of the City of St. Louis, Missouri, by R.T. Bennett and George McGregor, but stating that several claims had been made on him for the reward and asked leave of court to deliver said reward of $2,000 to the Clerk of the Circuit Court of Lincoln County, Missouri, and prayed an order of the court requiring all claimants to interplead for said reward. Defendant, Jos. A. Gerk, was permitted to pay said sum into the hands of the clerk and an order was made requiring all parties interested to file interpleas. The following parties, who are residents of Hawk Point, Lincoln County, Missouri, in addition to the plaintiffs, entered their appearance claiming said reward and filed interpleas: E.D. Hamilton, R.H. Brown, William F. Nicklin, Thomas D...

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