(Blue) Star Service, Inc. v. McCurdy

• Decision Date: 06 February 1952
• Citation: 251 S.W.2d 139,36 Tenn.App. 1
• Parties: (BLUE) STAR SERVICE, Inc. et al. v. McCURDY.
• Court: Tennessee Court of Appeals

Page 139

251 S.W.2d 139

36 Tenn.App. 1

(BLUE) STAR SERVICE, Inc. et al. v. McCURDY.

Court of Appeals of Tennessee, Western Section, at Jackson.

Feb. 6, 1952 Certiorari Denied by Supreme Court June 7, 1952.

Martin & Tate, of Memphis, for plaintiffs-in-error.

Wm. L. Allan, Ewing, Laughlin & Watson, of Memphis, for defendant-in-error.

SWEPSTON, Judge.

Norman S. McCurdy sued the defendant parking lot operators and their agent in charge for damages for 'wrongfully and illegally procuring the arrest of plaintiff by Memphis police officers'.

There was a jury verdict for $3500, which on motion of defendant for a new trial was reduced by suggestion of remittitur to $2500.

Defendants have appealed and assigned error both as to liability and the amount of the judgment.

Plaintiff has appealed and assigned error as to the suggested remittitur.

Before treating the assignments of error the following facts are not contradicted.

Plaintiff was in arrears by two payments with the C.I.T., a finance company, holding the paper on his automobile. He agreed to give possession of same until he could catch up the payments. On January 5, 1951 two employees of C.I.T. came to his home in a subdivision outside the city of Memphis near Oakville, drove the car into the city and parked the same with defendant company at night time, where C.I.T. had an arrangement for parking repossessed cars. Next morning the parking lot issued its claim check for same to C.I.T. and placed the car keys on a board in the parking lot office.

January 9 plaintiff paid C.I.T., was given a receipt and the claim check to the car. C.I.T. informed the defendants the same morning that plaintiff was entitled to possession of the car.

The evidence is in conflict as to the exact time of day plaintiff obtained his car from the lot, plaintiff testifying it was the same morning, that he paid a colored boy $1.50 and gave him the claim check before he drove away, while defendants deny any knowledge of when or how he obtained it, testifying they have no record of the $1.50 or the claim check, and that plaintiff did not deal with any of the employees of the lot, but admitted they no longer had the car key.

This, however, was for the jury to resolve.

In any event defendant Simmons discovered on January 10 that the car was no longer on the lot and having no clearance of it on his records, he inquired of the other two employees and of C.I.T., after which he called the Police Department Auto Theft Bureau and reported the car had been stolen, R. 15, 68, 88. Defendant's agent Simmons stated at that time to the police he did not know whether plaintiff had 'come and got the car or not', R. 69 but that he had paid the C.I.T. and was entitled to possession upon payment of storage and delivery of the claim check. The police told Simmons to 'check and see if anyone on the lot or in the firm had come down and got the car, before we send a squad car down; to verify the fact that it was a stolen automobile'. R. 69, 94. Pursuant to those instructions Simmons telephoned C.I.T. and obtained the mailing address which proved to be a rural route, and learned that plaintiff had no telephone, but he did not inquire of C.I.T. how to get to that address and did not send anyone or go to plaintiff's home.

Simmons reported back to the police that he had made the investigation and that the car had been stolen. R. 95.

Simmons did not state who had stolen it and did not directly request the arrest of anybody, but when he reported it to police as a stolen car, he knew they would 'pick up whoever they found in it'.

January 11 about 2:30 P.M. the police spotted the car at Trigg and Florida streets in an industrial section of south Memphis, forced it to the curb, arrested and handcuffed the driver, who proved to be plaintiff, at pistol point, put him in a squad car and took him to jail and 'frisked' him. About 4:00 P.M. they took him to the lot of defendants where he established his innocence. Whereupon plaintiff being violently angry cursed the police copiously and accused them of stealing his money. The police took him back to jail and held him until the next morning, during which time he was finger-printed and photographed. He was given his money and other personal property.

The defense is that defendant did not procure the arrest but if so, the same was justified.

(1) because plaintiff took the car from said lot without paying storage charges, or presenting claim check, or signing a release for the car,

(2) that it was done to protect all parties and

(3) a reasonable and prudent investigation before informing the police.

The first assignment of error is the failure of the court to give a peremptory instruction for defendants at the close of plaintiff's proof.

This assignment is overruled, because defendant introduced evidence after the motion was overruled, which is a waiver of the right to complain.

The second assignment is the failure to give a peremptory instruction for defendants at the close of all the proof.

The solution to this depends upon whether the legal theory of the plaintiff or that of defendant is applicable to the evidence.

The theory of plaintiff is embodied in the excerpt from the charge of the court quoted in defendants' sixth assignment as follows:

'* * * if a person wrongfully, or without proper investigation, sets in motion by his act or words the machinery from which another is wronged, that person who does so, is equally answerable with the person who commits the wrong. If it appears that before setting in motion, machinery which results in the arrest of the plaintiff, the defendant endeavored to exercise reasonable diligence to make such inquiry and investigation of facts touching the probability of theft or disappearance of the automobile as an ordinarily prudent person would have made under the same circumstances, then the defendant would not be liable for setting such machinery in motion.' (R. 135).

The theory of defendant is embodied in the special request of defendant quoted in his third assignment, which request the court refused, as follows:

'Gentlemen of the Jury, it is the theory of the Defendants that a person is not liable in damages for false arrests or imprisonment where he merely reports to the police officials the facts and circumstances which gave rise to his belief that a theft has been committed and does not accuse any specific individual of the theft and does not direct or request, either expressly or impliedly, that any person be arrested. If you find from the facts that neither the defendant Simmons, nor any one employed by the (Blue) Star Service Company, Inc., accused McCurdy of having stolen the Packard car in question, and did not request or direct, either expressly or impliedly, that Mr. McCurdy be arrested, then you must bring in a verdict in favor of both of the defendants'. (R. 140).

In view of defendant Simmons' testimony that when he first telephoned the police he was told by them to make an investigation before the police acted; that he then obtained the mailing address of plaintiff but made no effort to learn how to contact plaintiff otherwise; that he then reported the car as stolen and knew that the police would pick up whomever was found in possession of it; and the further fact that the evidence is silent as to his having given the police a description of the plaintiff or taken any precautions to avoid their arresting plaintiff if he should be found in possession, we think it was for the jury to say whether he wrongfully procured the arrest of plaintiff by his failure to exercise reasonable care in investigating the facts before finally reporting the car as having been stolen without taking any precautions to prevent the arrest of plaintiff in the event he should be found by the police to be in possession of the car. We do not think the evidence is undisputed, as insisted by defendants, that Simmons made such a full investigation as a reasonably prudent person would have made, nor that he otherwise took such precautions against the probability of the plaintiff's arrest, if found in possession.

We are of opinion, however that Simmons' testimony shows as a matter of law, he procured the arrest of plaintiff by the police, as we shall try to demonstrate.

In Restatement of the Law, Torts, Sec. 35, False Imprisonment it is said:

'(1) An act, which directly or indirectly, is a legal cause of a confinement of another within boundaries fixed by the actor for any time, no matter how short in duration, makes the actor liable to the other...