Bushardt v. United In

• Decision Date: 01 September 1922
• Docket Number: (No. 11608.)
• Citation: 113 S.E. 637
• Parties: BUSHARDT. v. UNITED INV. CO.
• Court: South Carolina Supreme Court

113 S.E. 637

BUSHARDT.

v.UNITED INV. CO.

(No. 11608.)

Supreme Court of South Carolina.

Sept. 1, 1922.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Suspicion.]

Appeal from Common Pleas Circuit Court of Richland County; I. W. Bowman, Judge.

Action by W. K. Bushardt against the United Investment Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to enter judgment under rule 27 (90 S. E. xii).

N. J. Frederick, of Columbia, for appellant.

Robert Y. Kibler of Augusta, Ga., and A. F. Spigner, of Columbia, for respondent.

MARION, J. This was an action for damages on account of alleged false imprisonment arising out of the following facts:

On or about the 20th of January, 1921, F. S. Strickland, a police officer, the chief of detectives, of the city of.Columbia, received a report of the commission of a robbery at a store in Washington street in said city. The information was conveyed to him by a negro boy, who worked "in the frost of the Regal Drug Store" as a "soda jerker." The boy claimed to have been held up at the point of a pistol and "robbed of what cash was in the register that night" and gave the officer a description of the man who had committed the crime. The officer preceded to investigate, and the next day had the boy with him the greater part of the morning looking for this man. After the boy had left him, Detective Strickland saw Mr. Bushardt, the plaintiff in this action, standing at the post office wearing an overcoat that filled the description given him. The officer did not immediately arrest Mr. Bushardt, but invited him to get in the car with him and drive down the street, telling Bushardt that he wished to have a party look at him. Bushardt did not know Strickland was a police officer went with him willingly, and makes no claim that he was then subjected to restraint or compulsion of any kind. They drove to the Regal Drug Store. The negro boy, the "soda jerker, " was called out, and "after Bushardt had got on the ground" the boy said, "That is the man." The officer asked Bushardt to go in the store, get down behind the counter, and stand at the cash register. The boy was cautioned to be "sure." He insisted that Bushardt was the man who held him up. The plaintiff testified:

"He [the boy] said, 'Carry him on; I know that is the man: Upon that statement Mr. Strickland carried me on to the city jail."

Mr. Strickland, who testified as a witness for plaintiff, said:

"On the strength of that identification, I took him to jail. The boy identified the man that was all. Upon his saying that was the man and to hold him, I did so."

The plaintiff, who was a nonresident white man, about 28 years of age and, as the record indicates, of good character, was held in jail until the following morning, when he was discharged by the recorder. He then brought this action against the defendant, the corporation that owns and operates the Regal Drug Store, for false imprisonment From judgment on verdict for plaintiff the defendant appeals.

The appellant's second exception is directed to the refusal of the defendant's motion for a nonsuit. It is charged that the circuit judge erred in not granting a nonsuit, in that:

"(a) The evidence showed conclusively that the arrest and detention were legal; there being no disputed facts to submit to the jury.

"(b) There is no evidence from which it can be inferred that the employee was acting in the interest of his master—the defendant—instead of himself personally, it being remembered that the servant who reported the robbery to the officer and made the identification was the one himself who was held up.

"(c) There is no evidence that the defendant authorized, acquiesced in, or ratified the acts of its employee, or that the employee was acting within the scope of his employment. Instead, the evidence affirmatively shows that no one but the servant himself had anything to do with the matter, and that, too, at the bidding of the police."

Respondent objects to the consideration of this exception upon the ground that the case does not disclose that the motion for nonsuit was reduced to writing by the moving counsel, or by the stenographer under the direction of the court, and the grounds thereof stated, as required by rule 18 (33 S. E. viii) of the circuit court The case contains this statement: "At the close of the testimony, defendant moved for a non-suit, which, after argument was refused." It is well settled that this court will not consider an exception that is not supported by the record. Hicks v. So. Ry. Co., 63 S. C. 566, 41 S. E. 753; Du Pre Co. v. Railway Co. 96 S. C. 346, 80 S. E. 710; State v. Hampton, 106 S. C. 278, 91 S. E. 314; Clark v. Express Co., 101 S. C. 299, 85 S. E. 720. It follows that an objection to the consideration of an exception that is not sufficiently supported by the record cannot be sustained. It appearing from the "case" that the motion for nonsuit was made and refused, in the absence of any showing to the contrary, it must be assumed that there was due compliance with rule 18 of the circuit court, and that the grounds of the motion as presented on circuit are correctly set out in appellant's exception 2. In Elkins v. Railroad Co., 59 S. C. 1, 37 S. E. 20, this court, speaking through Chief Justice McIver to a closely analogous point, said:

"If it should be said that the 'case' does not show that the respondent complied with the requirement of rule 18 of the circuit court, that the specific grounds upon which the demurrer rested should be pointed out, a sufficient answer would be that it does not appear that any such question was either raised or passed upon by the circuit judge, and hence this court cannot consider it. Besides, in the absence of any showing to that effect in the 'case, ' this court would have no right to assume that a party has disregarded the rules of court."

In Stanford v. Cudd, 93 S. C. 367, 76 S. E. 986, the court held:

"It is not necessary to repeat the requests to charge, the grounds of a motion for nonsuit, or the grounds of appeal to the circuit court, as is often done. A simple statement in the record to the effect that they are correctly set out in the exceptions is sufficient."

While in this case it is not expressly stated in the record that the grounds of the motion for nonsuit are correctly set forth in the exceptions, in perfecting the appeal the case and exceptions must have been served in due course upon respondent's counsel. They were thereby notified that this court would be asked to review the refusal of the motion for nonsuit duly noted in the case upon the grounds set out in exception 2. If the grounds set out in that exception were not a correct presentation of the ground assigned for the motion as made on circuit, respondent's counsel should have taken steps in apt time to have the case amended and settled so as to show the facts affirmatively. There can be no doubt that where an appeal involves the trial judge's ruling on a motion for nonsuit, in the absence of an express agreement in the case to the effect that the grounds are correctly set out in the exceptions, the better practice is to incorporate in the case the grounds of the motion and the trial judge's ruling thereon, to the end that this court may not be called upon to consider grounds for nonsuit which may be embodied in the exceptions, but which were not in fact ruled upon by the court below. See Hicks v. So. Ry., supra. But the mere fact that the grounds of the motion are not set out in the case is not sufficient to warrant this court in indulging a presumption that the exception directed to the judge's refusal of the nonsuit does not correctly present the grounds of the motion as made on circuit. We are therefore constrained to hold that appellant's exception 2 should be considered on its merits.

The first ground upon which this exception predicates error in refusing the motion for nonsuit is that "the evidence showed conclusively that the arrest and detention were legal." It has been definitely decided in this jurisdiction that where one is "properly arrested by lawful authority, " "an action for false Imprisonment cannot be maintained against the party causing the arrest." Bar-field v. Coker, 73 S. C. 192, 53 S. E. 170; McHugh v. Pundt, 1 Bailey, 441; McConnell v. Kennedy, 29 S. C. 187, 7 S. E. 76; Whaley v. Lawton, 62 S. C. 91, 40 S. E, 128, 56 L. R. A. 649. If a lawful arrest has been improvidently procured, without probable cause, the plaintiff's remedy lies in an action for malicious prosecution, in which action the necessary element of malice may be in ferred as a fact from the want of probable cause. Graham v. Bell, 1 Nott & McC. 278, 9 Am. Dec. 687; Stoddard v. Roland, 31 S. C. 344, 9 S. E. 1027; Hogg v. Pinckney, 16 S. C. 400; China v. S. A. L. Ry. Co., 107 S. C. 179, 92 S. E. 335. For good reasons grounded in sound public policy, we apprehend that the law refers an innocent person so wronged to the action of malicious prosecution for the only redress to which he is entitled. Upon the issue here involved in an action for false imprisonment, the sole inquiry is, Was the plaintiff unlawfully restrained of his liberty? Barfield v. Coker, supra.

The defendant introduced no evidence, and the facts are undisputed. Under the well-settled rule, if only one reasonable or legitimate inference can be drawn from the evidence, the question is one of law for the court. Ford v. Kelsey, 4 Rich. 365.

The plaintiff was charged with the commission of a felony, and was subjected to arrest and detention by a peace officer without a warrant. There is no evidentiary basis for a contention that the defendant, through any of its agents and servants, actively participated in the actual seizure or detention of the plaintiff's person. The fact is uncontroverted that the arrest was made and the detention enforced by the police officer alone; the defendant's only connection therewith...