Ahern v. Collins

• Decision Date: 31 October 1866
• Citation: 39 Mo. 145
• Parties: JEREMIAH AHERN, Respondent, v. JOHN COLLINS, Appellant.
• Court: Missouri Supreme Court

39 Mo. 145

JEREMIAH AHERN, Respondent,

v.JOHN COLLINS, Appellant.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Court of Common Pleas.

The petition alleges that on the 27th day of September, 1864, the defendant unlawfully, maliciously and without probable cause, and with the intent to injure and oppress plaintiff, did cause and procure plaintiff to be arrested at his residence in the city of St. Louis, and thence to be forcibly conveyed through the public streets of the city of St. Louis a long distance to a police station, and there unlawfully, maliciously and without probable cause did cause plaintiff to be detained a long time, when plaintiff was fully discharged without trial or examination, whereby plaintiff suffered great bodily pain and mental anguish, and sustained damage in the sum of one thousand dollars, &c.

The answer simply put in issue the allegations contained in the petition.

At the request of plaintiff the court gave the following instructions:

1. If the jury believe from the evidence that the arrest of plaintiff was made without reasonable or probable cause, then the law presumes, in the absence of testimony establishing the contrary, that such arrest was made with malice.

2. If the jury is satisfied that the defendant caused plaintiff to be arrested at his residence in the city of St. Louis, and caused him to be conveyed thence by police officers and he was then discharged, and that such arrest was made without reasonable or probable cause and maliciously, then the jury will find for plaintiff in such sum as they believe he ought to recover.

3. If the jury find for the plaintiff, in estimating the damages sustained by him they are bound by law to consider the jeopardy in which the liberty of plaintiff was placed; the distance that plaintiff was compelled to walk; his age and physical condition at the time of his arrest; the bodily suffering, mental anxiety and pain caused thereby,--and they are to find for him in such sum as will reasonably compensate him for all these things.

Defendant asked the following instruction, which was given:

If the jury believe that the plaintiff was arrested at the instance of defendant, unless they also believe that said arrest was caused by the defendant maliciously, and that said arrest and the complaint or application to have it made were without probable cause on the part of defendant, they ought to find for the defendant.

The defendant also asked the following instructions, which were refused:

1. Unless the jury believe from the evidence that an arrest has been made of the defendant at the instance of plaintiff they will find for the defendant, and the proof of an arrest cannot be made by oral evidence unless the jury shall be of the opinion that it was made during the commission of an offence.

2. The jury are instructed that in that case there is no evidence of a want of probable cause for the apprehension, and they will find for the defendant.

3. Unless the jury believe that an arrest was made upon a complaint and affidavit by the defendant, upon which a warrant or other process issued, they will find for the defendant.

Isaac T. Wise, for appellant.

I. In this case the plaintiff has mistaken the nature of his cause of action (if he has any at all), and on the pleadings alone ought to be reversed.

The first allegation in an action for malicious arrest must be, 1. That plaintiff has been prosecuted by defendant. 2. That the prosecution has been dismissed, or an acquittal of plaintiff in that prosecution. This the plaintiff must aver and prove; yet he could not have done so on his own petition if his evidence had been at hand--2 Stark. Ev. 497; 1 Greenl. §§ 449 & 452.

The petition shows the nature of the action, not the evidence, and a fatal defect such as no cause of action made out in the petition is not cured by verdict--Patrick v. Abeles, 27 Mo. 184; Welch v. Byrnes, 28 Mo. 30; Mooney v. Kennett, 19 Mo. 553.

II. If the petition had stated the cause of action perfectly upon issues joined, the next indispensable step on the part of the plaintiff would have been to prove, 1st, a prosecution, 2d. an acquittal, or at least that the prosecution had ended. “The gravamen of the action being that plaintiff has been made the subject of legal process to his damage” (Greenl. & Stark. as above); in proof of which it appears that this is the first action of this nature ever had in this court not so based upon a prosecution or legal process instituted by defendant, the evidence shows nothing--Hays v. Walker, 2 Mo. 222; Miller v. Brown, 3 Mo. 127; Stone v. Powell, 5 Mo. 435; Hickman v. Griffin, 6 Mo. 37; Williams v. Vanmeter, 8 Mo. 339; Remy v. Vanlandingham, 9 Mo. 807; Frissel v. Relf, 9 Mo. 849; Brant v. Higgins, 10 Mo. 728; Mooney v. Kennett, 19 Mo. 551.

III. The evidence of the plaintiff shows affirmatively that there never was any prosecution or legal process or proceedings of any kind whatever, so no question can ase as to whether he was “maliciously or without probable cause” made the subject of legal process by the defendant--Buckley v. Smith, 2 Duer, 268, and cases cited; Baldwin v. Weed, 17 Wend. 227; Swan v. Stafford, 4 Wash. C. C. 79; Davis v. Hanly, 6 B. & C. 225.

IV. There was no arrest--there being neither warrant issued nor any complaint made, not even after the plaintiff came to the station with Reilly and another. An arrest is defined to be “the beginning of imprisonment when a man is first restrained of his liberty by the power of a lawful warrant”--1 Burr. L. D.; 4 Com. Dig. 250; Bouv. L. D. 130; 1 Jac. L. D. 125.

V. If the plaintiff had proceeded with his proof and had proved the prosecution, its institution by the defendant, and the acquittal or dismissal, his next step would have been to prove “its institution without probable cause, malice,” &c. But in this case no prosecution ever existed--Greenl. on Ev. § 453.

VI. The policeman Reilly and the other had no power to make an arrest. Even if they had laid hands on Ahern, it would have been a trespass on the person, an assault, or an imprisonment, or both, for which they would have been liable. A threat of an assault does not make one, nor is a threat of arrest (the officer having no warrant) even duress.--Claflin et al. v. McDonough, 33 Mo. 412.

Wood and Mauro, for respondent.

FAGG, Judge, delivered the opinion of the court.

In order that the view taken of this case may be clearly understood, it will be necessary first to notice the petition. It has been argued, here, upon the theory that it was drawn with the intention of setting out a cause of action altogether similar to what, under the common law system of practice, would have been called an action for malicious arrest or malicious prosecution. The same idea seems to have been entertained in the trial of the cause in the court below. After averring the fact that the defendant wrongfully...