Burke v. Robinson.

• Decision Date: 14 April 1925
• Docket Number: No. 18925.,18925.
• Citation: 271 S.W. 1005
• Parties: BURKE v. ROBINSON.
• Court: Missouri Court of Appeals

271 S.W. 1005

BURKE v. ROBINSON.

No. 18925.

(St. Louis Court of Appeals. Missouri.

April 14, 1925.

Rehearing Denied May 12, 1925.

Appeal from St. Louis Circuit Court, Claude O. Pearcy, Judge.

"Not to be officially published."

Action by George H. Burke against S. S. Robinson. Judgment for plaintiff, and defendant appeals. Affirmed.

M. J. Hackett and Thos. E. Mulvihill, both of St. Louis, for appellant.

J. R. Weinbrenner and J. W. Joynt, both of St. Louis, for respondent.

BRUERE, C.

This is a suit for unlawful arrest and false imprisonment. The trial below resulted in a verdict for the plaintiff for the sum of $200 actual damages and the sum of $800 punitive damages. Judgment was rendered in favor of plaintiff for $1,000, the aggregate damages assessed as aforesaid, and the cause is here on the appeal of the defendant.

The charging part of the petition is as follows:

"That the defendant unlawfully, willfully, falsely, and maliciously, and intending to oppress the plaintiff and deprive him of his liberty, and bring shame and disgrace upon him, caused him to be arrested by a police officer of the city of St. Louis, Mo., without warrant of law, and to be carried by said police officer through the streets of the city of St. Louis, Aro., in a patrol wagon to a police station located at Leffingwell and Laclede avenues in the city of St. Louis, Mo., where he was confined for a period of three hours in a jail cell, by virtue of his imprisonment, whence he was liberated on bond and subsequently discharged. That said arrest and imprisonment was false and malicious and was without warrant of law.

"That as a result of said arrest and false imprisonment the plaintiff was caused to expend great sums of money for bond fee, to wit, $50, and for attorneys' fees, to wit, $200, and was caused to lose two days wages, to wit, $20, and was caused to suffer great nervousness, pain, and anguish of mind, and was humiliated among his friends and acquaintances and the people of the city of St. Louis. Mo., and was injured in his good name, to his actual damage in the sum of $10,000.

"That said wrongful arrest and imprisonment was willful, malicious, and without warrant of law, and intended to oppress plaintiff and to deprive him of his liberty and right as a citizen of the city of St. Louis, Mo."

The petition prays for $10,000 actual damages and $10,000 punitive damages.

The evidence, on the part of the plaintiff, tends to show that on January 1, 1923, at about 11 or 11:30 p. m., plaintiff, in company with his brother and several friends, entered the restaurant of defendant, proceeded to the rear thereof and ordered something to eat. Shortly thereafter a sergeant and a patrolman, officers of the city of St. Louis, came into the restaurant and entered into a conversation with the defendant. Thereupon the sergeant proceeded to the table where plaintiff was seated with his brother and friends, and inquired which one was Burke. Plaintiff responded that his name was George Burke, and the sergeant then told plaintiff to come with him to the front part of the restaurant. Upon plaintiff asking, "what's the matter?" the sergeant replied, "Well, come on up here and find out." Plaintiff thereupon accompanied the sergeant to the front part of the restaurant, where defendant and the patrolman were standing. Plaintiff then inquired of defendant, "What do they want with me?" and defendant replied, "You know what they want with you." Upon plaintiff replying, "Why, no; I don't," the sergeant said, "What shall I do with him?" Defendant then said, "Lock him up."

The evidence adduced by the plaintiff further tends to show that when plaintiff, accompanied by the sergeant, arrived at the front part of the restaurant, Thomas F. Burke, plaintiff's brother, inquired of defendant what the trouble was, and that in reply to this inquiry the defendant said they were going to have plaintiff arrested and locked up for breaking a window in the front of the building.

Immediately after the defendant told the police sergeant to lock up the plaintiff, the patrol wagon was called, and plaintiff was placed therein and then driven to the Eighth District Police Station at Laclede and Leffingwell avenues. Upon arriving at the police station plaintiff was searched by the police desk sergeant and his money and all personal belongings taken from him. He was charged with "suspected of malicious destruction of property" and placed in a cell, where he remained for a period of three hours, when he was released on bond. Thereafter the charge against plaintiff was dismissed without trial.

The evidence, on the part of the defendant, tends to show that the defendant was present at the time the arrest was made, but that the police officers arrested plaintiff of their own volition.

The errors assigned here relate to the refusal of the trial court to permit proper evidence, offered by the defendant upon the trial of the cause, to go to the jury, and to the giving of plaintiff's instructions Nos. 2, 5, and 6.

As to the first assignment of error, counsel for defendant do not direct our attention to the evidence offered by defendant and excluded by the court. Neither does the record disclose that an offer to prove was made, showing what the testimony would be if the witnesses were allowed to testify. Under such circumstances there is nothing before us to review in connection with this assignment of error.

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

"No. 2. The court further instructs the jury that, while the burden of proof rests upon the plaintiff, the burden of law does not require that he should prove by direct testimony that the defendant was heard to give a direct order to arrest the plaintiff, but, if the jury believe from the facts and circumstances in evidence that the defendant encouraged, countenanced, or approved the arrest and imprisonment, and that such arrest and imprisonment was without warrant and wrongful, then the jury should find for the plaintiff and against the defendant."

The defendant contends that said instruction is erroneous, for the reason that it in broader than the pleadings and in direct conflict with the theories upon which plaintiff's case was tried.

The petition alleged that the defendant "caused plaintiff to be arrested by a police officer of the city of St. Louis, Mo., without warrant of law."

"The law is well laid down that any person who is present at the commission of a trespass, encouraging or exciting the same by words, gestures, looks, or signs, or who in any way or by any means countenances or approves the same, is in law deemed to be an aider and abettor, and liable as a principal" McMannus v. Lee et al., 43 Mo. 206, loc. cit. 208, 97 Am. Dec. 386; see, also, Cooper v. Johnson...