City of McMechen ex rel. Willey v. Fidelity & Cas. Co. of N. Y., No. 12013

• Court: Supreme Court of West Virginia
• Writing for the Court: CALHOUN
• Citation: 116 S.E.2d 388,145 W.Va. 660
• Parties: CITY OF McMECHEN, etc., ex rel. Clark WILLEY v. FIDELITY AND CASUALTY CO. OF NEW YORK, New York, et al.
• Docket Number: No. 12013
• Decision Date: 18 October 1960

Page 388

116 S.E.2d 388 145 W.Va. 660 CITY OF McMECHEN, etc., ex rel. Clark WILLEY
v.
FIDELITY AND CASUALTY CO. OF NEW YORK, New York, et al. No. 12013. Supreme Court of Appeals of West Virginia. Submitted Sept. 13, 1960.
Decided Oct. 18, 1960.

Page 389

Syllabus by the Court.

1. A peace officer may lawfully arrest one without a warrant if he believes, upon reasonable grounds, that the person arrested has committed a felony, though not committed in the officer's presence; and an arrest made under such circumstances is not rendered unlawful or unwarranted by the fact that it afterwards appears that the person arrested is innocent or that no felony was actually perpetrated.

2. 'Where the verdict of a jury has been improperly set aside by the trial court, this court will reinstate the verdict and render judgment thereon.' Point 3 Syllabus, Ware v. Hays, 119 W.Va. 585 [195 S.E. 265].

S. Robert Reiter, Wheeling, for plaintiffs in error.

Handlan, Garden, Matthews & Hess, Wheeling, for defendant in error.

CALHOUN, Judge.

This case involves an action of covenant instituted in the Circuit Court of Marshall County by the City of McMechen, at the relation of and for the use and benefit of Clark Willey, who will be referred to herein as the 'plaintiff', against Philip J. Korsnick, a police officer of the City of McMechen, and the surety on his official bond, Fidelity and Casualty Company of [145 W.Va. 661] New York. Korsnick and the corporate surety on his official bond will be referred to herein as the 'defendants', in accordance with their designation in the trial court.

The purpose of the action on the official bond of the police officer is to recover damages from the defendants for alleged false arrest and false imprisonment of the plaintiff by Korsnick. The case is before this Court on writ of error to the judgment of the trial court, embodied in an order dated June 19, 1959, by which a verdict for the defendants was set aside and a new trial awarded to the plaintiff.

On April 2, 1958, about 6 o'clock p. m., while on duty as a police officer for the City of McMechen, Philip J. Korsnick was seated in a police car or cruiser which was parked within the municipality. He testified that, as a city police officer, he received weekly from the communications officer of the State Department of Public Safety lists containing the license plate numbers of stolen motor vehicles; that such lists are known as 'hot sheets'; that West Virginia license plate number 49-254 for the license year 1957-58 appeared on such hot sheets for a period of months prior to and including April 2, 1958; and that while he was seated in the police cruiser on that date as stated above, he saw a passing automobile bearing such license plate.

Defendant Korsnick testified further that upon noting the passing automobile bearing the license plate number which appeared on the current hot sheet, he started promptly in pursuit, with two red lights on the cruiser flashing and with the siren sounding; and that not until the third attempt did he succeed in driving ahead of the other vehicle and in getting it stopped. It was determined that the automobile in question was being operated by the plaintiff, Clark Willey, a resident of Wheeling, West Virginia, who was then a stranger to the police officer.

At the request of Korsnick the plaintiff displayed his operator's license and registration card. Korsnick [145 W.Va. 662] testified that the license plate had the appearance of having

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'been tore off an automobile', and that, in his judgment, the appearance of Willey did not correspond with the description appearing on the operator's license. At the officer's request the plaintiff, operating his own automobile, followed the police cruiser to the city building. Upon arrival at the city building, at Korsnick's request, the plaintiff again produced his operator's license and registration card. Thereafter Korsnick promptly placed a telephone call to Sergeant S. O. Perrine at Moundsville, communications officer for the state police in that area, who advised him that an automobile bearing the registration plates in question was stolen at Romney, West Virginia, on the night of November 11, 1957. Korsnick testified that he requested Sergeant Perrine to contact the Department of Motor Vehicles by radio in an effort to get additional information; that he called Thomas J. Cooper, Mayor of the City of McMechen; that Mayor Cooper 'said he was busy and for me to hold onto him * * * and for me to further check the man and the vehicle to ascertain exactly what was what;' that he called the police department at Wheeling in search of further information, and was advised that 'they also had it on the hot sheet, the same number listed'; that he called Sergeant Perrine 'about five times'; that Sergeant Perrine stated that his index card file indicated that the car bearing the license plate in question was stolen, but that shortly prior to plaintiff's release from custody, he was advised by Perrine that some mistake had been made in relation to the license plate number in question.

Eventually, the exact time being in dispute, the plaintiff was placed in a cell in the downstairs portion of the city building, after having been searched for concealed weapons. While he was fingerprinted, he was not handcuffed at any time, and the evidence fails to disclose that he was mistreated by violence, verbal abuse or otherwise. The plaintiff says that he was placed in the cell about 6 o'clock, and that he was [145 W.Va. 663] kept there for about two hours. On the other hand, Korsnick testified that, from his best recollection, the plaintiff was in the cell from 6:25 p. m. until 7:10 p. m.

The plaintiff testified that Korsnick refused to permit him to use the telephone until after he was removed from the cell. Korsnick denied that he refused at any time to permit the plaintiff to use a telephone, but testified that, on the contrary, plaintiff made at least three telephone calls and received several calls during the time he was detained. The evidence discloses that the plaintiff called by telephone to his wife at their residence at 184 Zane Street, Wheeling, after he was removed from the cell. As a consequence the plaintiff's wife and daughter and the daughter's 'boy friend' came to the city building a short while before the plaintiff was released, and perhaps while he was actually being released.

Korsnick testified that shortly after their arrival at the city building, the requested that the plaintiff supply further means of identification, but that the plaintiff failed to reply; and that about that time he told the plaintiff that 'the motor vehicle he was operating was stolen', and that it would be necessary 'to hold...