Day v. Wells Fargo Guard Service Co., 67835

• Decision Date: 17 June 1986
• Docket Number: No. 67835,67835
• Citation: Day v. Wells Fargo Guard Service Co., 711 S.W.2d 503 (Mo. 1986)
• Parties: Paul M. DAY, Respondent, v. WELLS FARGO GUARD SERVICE CO., Appellant.
• Court: Missouri Supreme Court

Page 503

711 S.W.2d 503

Paul M. DAY, Respondent, v. WELLS FARGO GUARD SERVICE CO., Appellant.

No. 67835.

Supreme Court of Missouri En Banc.

June 17, 1986.

Rehearing Denied July 15, 1986.

Eugene K. Buckley, Laura B. Allen, St. Louis, for appellant.

Douglas P. Dowd, St. Louis, for respondent.

BILLINGS, Judge.

Plaintiff Paul M. Day filed an action against his former employer, defendant Wells Fargo Guard Service, [hereinafter Wells Fargo] for instigating and encouraging the St. Louis Police Department to falsely arrest plaintiff. The jury returned a verdict awarding plaintiff $15,000 in actual damages and $30,000 in punitive damages. We transferred the case following an opinion by the Missouri Court of Appeals, Eastern District. Mo. Const. art. V, § 10. We affirm.

The primary issue in this appeal is whether plaintiff produced sufficient evidence of defendant's instigation of plaintiff's false arrest to warrant submission of the case to the jury. Defendant contends plaintiff's proof on this issue was fatally deficient, and it was not shown that defendant caused plaintiff to be restrained against his will.

In determining whether plaintiff made a submissible case we must construe the evidence, together with all reasonable inferences drawn therefrom, in a light most favorable to the plaintiff--notwithstanding the fact that the evidence presented by the parties conflicted with respect to the critical facts of the case. Troupe v. Super-X Drugs Corp., 659 S.W.2d 276 (Mo.App.1983).

Before examining the quality of plaintiff's evidence, a few basic principles underlying an action for false arrest should be noted. A false arrest occurs when there " 'is confinement without legal justification by the wrongdoer of the person wronged.' " Rustici v. Weidemeyer, 673 S.W.2d 762, 767 (Mo. banc 1984) quoting Warrem v. Parrish, 436 S.W.2d 670, 672 (Mo.1969). Section 112 of the Restatement of Torts (Second) defines an arrest in the following manner:

An arrest is the taking of another into the custody of the actor for the actual or purported purpose of bringing the other before a court, or of otherwise securing the administration of the law.

In Comment C to § 112, the Drafters of the Restatement state that "an arrest is usually made for the purpose of bringing an actual or supposed criminal into court for the purpose of investigation or trial." (our emphasis) And the arrest of a person can occur without actual physical restraint--that is without the application of force or the handcuffing of the suspect. See State v. Woods, 620 S.W.2d 443 (Mo.App.1981). See also State v. Maxwell, 60 Ohio Misc. 1, 14 Ohio Ops. 3rd 44, 395 N.E.2d 531, 534 (1978) (officer's order to defendant to appear the following morning at police station was sufficient restraint on defendant's liberties to constitute arrest, notwithstanding the fact usual trappings of arrest did not occur). Furthermore, an arrest can be accomplished without a formal declaration of such. Section 544.180, RSMo 1978, describes the necessary elements of an arrest and nowhere mentioned is a requirement that the arresting officer make a formal declaration to the arrestee that he is under arrest.

In Rustici we also concluded that "a person may ... be liable for false arrest if he ... merely instigates [the arrest], as in the case of providing information on the basis of which a subsequent unlawful arrest is made." Id. at 766. See also, Smith v. Allied Supermarket, Inc., 524 S.W.2d 848 (Mo. banc 1975). Plaintiff need not prove that defendant actually ordered or directed the plaintiff's arrest, but only that defendant encouraged, promoted or instigated the arrest. Troup v. Super-X Drugs Corp., 659 S.W.2d at 279. And, plaintiff is entitled to prove these facts by either direct or circumstantial evidence. Id.

The crux of plaintiff's theory of the case is that for a period of approximately six weeks in 1982, Wells Fargo wrongly accused him of stealing a missing pistol that had been issued to him on March 17, 1982. And that after defendant recovered the weapon and learned it was not stolen, but had been in the possession of another employee who was out sick until May 27, 1982, defendant, nevertheless, intentionally instigated the false arrest of plaintiff by St. Louis police officers on June 8, 1982.

Plaintiff's evidence consisted of seven live witnesses, deposition testimony, and a number of documentary exhibits. In this connection, we note that some of plaintiff's proof included the prior inconsistent statements of a number of Wells Fargo's employees. Under Rowe v. Farmers Insurance Company, Inc., 699 S.W.2d 423 (Mo. banc 1985), such statements are admissible as substantive evidence.

On March 17, 1982, plaintiff, a security guard in the employ of defendant, was issued a revolver for use in connection with the performance of his job. At the time that plaintiff was given this weapon, he routinely signed a firearm agreement which, among other things, identified by serial number the revolver being issued.

Plaintiff presented testimony that in the early morning hours of April 3, 1982, Carlos Sampson, a field inspector for defendant, visited plaintiff where he was stationed that day and told plaintiff that he needed plaintiff's weapon for use on the firing range where other employees were being qualified in the use of firearms. Plaintiff at that time gave Sampson the pistol that he was issued on March 17, 1982.

Plaintiff testified that later the same morning he asked Mike Fingerhut, one of his superiors at the agency, to make a record of the fact that his weapon was no longer in plaintiff's possession--so as not to conflict with the firearm agreement. Plaintiff testified further that Fingerhut refused on the ground that the pistol would be returned immediately to plaintiff. Plaintiff, however, produced further evidence showing that after April 3, 1982, the weapon he was issued on March 17, 1982, was never again in his possession. On April 19, 1982, plaintiff resigned his position with Wells Fargo.

On direct examination, Mr. Fingerhut denied that he knew before June 8, 1982 that the revolver had been recovered and since its disappearance had been in the possession of another Wells Fargo employee, Eugene Bennett, who was on sick leave until May 27, 1982. However, in deposition testimony taken prior to trial and which plaintiff read into the record, Mr. Fingerhut testified that he learned that Mr. Bennett was in possession of the missing pistol sometime after the first part of May, 1982.

Daniel Bradshaw, the branch manager for Wells Fargo, testified that it was a matter of policy to notify the police when a missing gun is recovered, and he testified further that he was uncertain whether he instructed Mr. Fingerhut to notify the police that the gun had been found.

It was virtually undisputed that defendant first reported the gun missing to the St. Louis Police on May 20, 1982. Prior to this report Mr. Fingerhut had contacted plaintiff in April at plaintiff's new place of employment, National Industrial Security, and threatened plaintiff with arrest unless the weapon was returned. Additionally, Mr. Fingerhut made similar threats over the telephone to plaintiff's pregnant wife, and he also informed plaintiff's new employer of the controversy.

During the course of his testimony, Mr. Fingerhut admitted that he was interested in having the police investigate the matter. Both Mr. Fingerhut and Mr. Bradshaw testified that plaintiff was not notified prior to June 8, 1982, that Wells Fargo had found the missing weapon.

The false arrest of plaintiff occurred on June 8, 1982 when two police officers, White and Loftin, confronted plaintiff while he was on duty at his new job. The officers did not declare to either the plaintiff or his supervisor that he was about to be placed under arrest. Instead, plaintiff's evidence showed that the officers told the supervisor that "we [have] to take him with us." Plaintiff testified that the two officers told him that he had to go with them, and that he was afraid not to go with the officers and that he believed he had no choice in the matter.

Upon "taking" plaintiff, Officers White and Loftin directed and controlled his movements for nearly three hours. First, plaintiff was taken to defendant's offices where he was confronted by Mr. Fingerhut. Next, the police took plaintiff to his apartment to look for a receipt for the weapon he was presently using in connection with his new job. Then plaintiff was taken to a district police station where he was further questioned. From the police station, plaintiff was then taken by Officer Loftin to a Union Carbide facility to obtain additional information from another Wells Fargo employee.

We have reviewed the entire transcript and conclude that plaintiff presented sufficient evidence on the element of instigation by defendant to warrant submitting the case to the...