City of Coral Gables v. Giblin, 59-643

• Decision Date: 13 March 1961
• Docket Number: No. 59-643,59-643
• Citation: 127 So.2d 914
• Parties: CITY OF CORAL GABLES, Florida, a municipal corporation, Appellant, v. Virginia GIBLIN, Appellee.
• Court: Florida District Court of Appeals

Page 914

127 So.2d 914

CITY OF CORAL GABLES, Florida, a municipal corporation, Appellant, v. Virginia GIBLIN, Appellee.

No. 59-643.

District Court of Appeal of Florida, Third District.

March 13, 1961.

Edward L. Semple and William M. Burton, Jr., Miami, for appellant.

Nichols, Gaither, Green, Frates & Beckham and Sam Daniels, Miami, for appellee.

HORTON, Chief Judge.

The appellee, plaintiff below, instituted an action against the appellant City of Coral Gables, and Anderson, a police officer, for false imprisonment. The complaint alleged that Anderson, an employee of the City of Coral Gables, a municipal corporation, did, while acting within the scope and course of his employment, stop the appellee, who was proceeding in an automobile with her husband to the Dade County Courthouse, and thereupon proceeded to prepare a citation showing that the appellee had exceeded the lawful speed limits of the City of Coral Gables; that Anderson wrongfully and unlawfully delayed the preparation of the citation for an unreasonable length of time, depriving the appellee of her freedom and right to proceed and that thereafter, due to such delay, the appellee's husband drove her from the scene at a lawful rate of speed to a point approximately two and one-half miles away within the corporate limits of the City of Miami, where Anderson accosted them on his motorcycle and, by sounding his siren and reaching for his pistol, required the appellee's husband to stop their automobile; that upon stopping the automobile, Anderson, without cause or authority to do so, unlawfully, wrongfully and maliciously deprived appellee of her freedom and compelled the appellee to be driven to the municipal jail of the City of Coral Gables and did unlawfully, wrongfully and maliciously imprison her and deprive her of her freedom. There followed the charge that the appellee suffered loss of liberty, mental suffering, physical injury, humiliation and embarrassment as a result of the alleged wrongful acts. One paragraph of the complaint charged the appellant with negligent employment of Anderson as a police officer and his retention with knowledge of his incompetency. An answer was filed on behalf of the appellant which adopted the allegations of the answer filed on behalf of Anderson but denied the charge of negligent ligent employment and retention of Anderson in the service of the city with knowledge of his incompetency.

Upon the issues made, the cause was tried before a jury and at the conclusion of the appellee's case, both the appellee and appellant moved for directed verdicts. At this time the appellee withdrew the charge against the appellant city that it was negligent in employing Anderson and retaining him in its employ. The trial judge denied the appellant's motion for directed verdict but granted the appellee's motion on the ground that appellee's arrest by Anderson in the City of Miami was illegal. The cause went to the jury on the sole issue of damages, both compensatory and punitive, resulting in a verdict for the appellee in the sum of $34,000 against appellant and Anderson. Anderson has not appealed the judgment.

The testimony and evidence at trial developed that on the morning of January 23, 1959, the appellee, accompanied by her husband, was proceeding east from their home along Blue Road in Coral Gables, Florida, when their automobile, driven by the appellee, was stopped by Anderson, a police officer of the appellant city. The appellee's automobile was stopped within the municipal limits of the City of Coral Gables as a result of a radar check being made by police officers of the City of Coral Gables. The automobile operated by appellee was clocked at 36 miles per hour at a point on Blue Road where the lawful posted rate of speed was 25 miles per hour. Upon stopping the appellee's car, Anderson took her driver's license, walked to the back of the automobile to obtain appellee's automobile license number, went to the right side of the appellee's car and obtained the inspection sticker number, and at that time, was allegedly apprised of the fact that appellee's husband, then one of the judges of the Circuit Court of the Eleventh Judicial Circuit of Dade County, Florida, had to be in court at 9:00 a. m. Other conversation ensued but resulted in the officer's walking to the rear of the automobile to speak to another officer some 30 feet away. While Anderson was conferring with the other police officer, appellee's husband took over the wheel of the automobile, called to Anderson, telling him that they were leaving and proceeded to drive away. At this point the testimony is in conflict as to whether or not Anderson, upon becoming aware that appellee's automobile was about to leave, informed appellee, her husband, or both, that they were under arrest and should not leave. The appellee testified that Anderson's admonition was directed to her husband, while Anderson's testimony indicates that his command was addressed to the appellee. After they had driven approximately two and one-half miles from the point at which they were stopped on Blue Road in the City of Coral Gables, a motorcycle driven by Anderson was observed by appellee at the intersection of Bird Avenue and U.S. Highway No. 1. As the appellee's husband turned their automobile east on Bird Avenue at U.S. Highway No. 1, they were overtaken and ordered to stop by Anderson who had the motorcycle's siren and red light on. The appellee's husband at first refused to stop and did so only when Anderson 'went for his gun.' Thereupon, appellee's automobile was brought to a halt in the 3100 block of Bird Avenue in the City of Miami. After appellee's automobile had stopped, Anderson opened the door, took the ignition keys and went to a private home and telephoned for help. As a result, two police patrol cars of the appellant city arrived on the scene, appellee's husband was personally searched by the police officers, and she and her husband were placed in a patrol car and driven to the Coral Gables police station. The appellee's car was taken to the police station by police officers assisting Anderson. After arrival at the Coral Gables police station, appellee and her husband were placed in a booking room which contained a desk, swivel chair, bench and extension telephone. The appellee testified that the door was locked, whereas the appellant's witnesses testified that it was not. After one fruitless attempt to use the telephone, appellee was allowed to make a telephone call. The appellee and her husband remained in the booking room fifteen or twenty minutes and thereafter appellee accepted a traffic summons, signed it, pleading guilty to the charge of speeding, paid the fine and was released.

Four points have been posed and argued by the appellant under its assignments of error seeking reversal of the judgment. However, we deem it necessary to discuss only one aspect of the case, i. e., whether the trial judge erred in directing a verdict against the appellant city. At this point it should be observed that the trial judge, in directing a verdict of liability against the appellant city and its police officer Anderson, did so upon the specific finding that the appellant's employee Anderson had illegally arrested the appellee in the City of Miami.

The appellant argues that under the circumstances the arrest in the City of Miami was lawful and did not render the appellant liable for false arrest or false imprisonment. This point is urged upon the theory that when the appellant's employee Anderson stopped the appellee in the City of Coral Gables for the violation of a municipal ordinance, she was then under arrest; that the subsequent attempt by the appellee to flee the custody of the arresting officer permitted the arresting officer, without warrant, to retake the appellee into custody by immediate pursuit pursuant to § 901.22, Fla.Stat., F.S.A. Section 901.22, surpa, provides:

'If a person lawfully arrested escapes or is rescued, the person from whose custody he escapes or was rescued or any other officer may immediately pursue and retake him without a warrant at any time and in any place within the state.'

Certainly if the arrest were lawful at its inception in the City of Coral Gables, it could be strenuously urged, due to the broad provisions of this statute, that the subsequent rescue or re-arrest in Miami was legal. See opinion of Attorney General of Florida, No. 60-9, 1960. However, if there were no arrest in Coral Gables, as the appellee contends, then, of course, the provisions of § 901.22, supra, would not apply and in such event, the arrest in Miami would have been without legal authority. The appellant further contends that the arrest was lawful under § 901.15, Fla.Stat., F.S.A. This statute permits a peace officer to arrest a person when '* * * a violation of a municipal ordinance' has been committed 'in his presence. In the case of such arrest for a * * * violation of a municipal ordinance, the arrest shall be made immediately or on fresh pursuit.' [Emphasis supplied.] This contention would merit further examination and discussion were it not for the obvious lack of authority of a municipal police officer to pursue and initially arrest an offender beyond the boundaries of the municipality. No authority has been cited us, and our research fails to disclose any statute, special or general, that authorizes a municipal police officer to pursue and initially arrest an offender beyond his municipal territorial limits. See opinion of Attorney General of Florida, No. 55-24, 1955; Rodgers v. Schroeder, 220 Mo.App. 575, 287 S.W. 861, 863-64.

If the initial arrest was legal, there would appear to be no liability for a re-arrest. On the other hand, if there was no lawful arrest initially, then the city could not claim a lawful re-arrest pursuant to § 901.22, supra, and such alleged re-arrest would be ultra vires. Therefore, the legality or illegality of the arrest in the City...