Engelbrecht v. Roworth

• Decision Date: 06 January 1942
• Citation: 157 S.W.2d 242,236 Mo.App. 459
• Parties: CHARLES ENGELBRECHT, APPELLANT, v. E. A. ROWORTH, CHARLES SWARTHOUT, GEORGE A. McDONALD, HENRY BLOEMKE, JOHN DITZLER, DEFENDANTS, GEORGE A. McDONALD, RESPONDENT
• Court: Missouri Court of Appeals

157 S.W.2d 242

236 Mo.App. 459

CHARLES ENGELBRECHT, APPELLANT, v. E. A. ROWORTH, CHARLES SWARTHOUT, GEORGE A. McDONALD, HENRY BLOEMKE, JOHN DITZLER, DEFENDANTS, GEORGE A. McDONALD, RESPONDENT

Court of Appeals of Missouri, St. Louis

January 6, 1942

Motion for Rehearing Denied January 20, 1942.

Appeal from Circuit Court of City of St. Louis.--Hon. Charles B Williams, Judge.

REVERSED AND REMANDED.

Action affirmed and cause remanded.

Albert E. Hausman for appellant.

(1) Vaughn v. Hines, 206 Mo.App. 425; Pandjiris v Hartman, 196 Mo. 548; Hauser v. Bieber, 271 Mo 326; Thompson v. Buchholz, 107 Mo.App. 121; Harris v. Railroad Assn., 203 Mo.App. 324; Peterson v. Fleming, 297 S.W. 163. (2) Titus v Montgomery Ward, 232 Mo.App. 987, 982, 123 S.W.2d 574; Dunleavy v. Wolferman, 106 Mo.App. 46, 51; O'Hearn v. Collins, 39 Mo. 145; Hauser v. Bieber, 271 Mo. 326, 335; State v. Dunivan, 217 Mo.App. 548; Singleton v. Exhibition Co., 172 Mo.App. 299; Daniels v. Philips Petroleum Co., 73 S.W.2d 355; Gust v. Montgomery Ward, 135 S.W.2d 94, 229 Mo.App. 150; Harris v. Railroad Assn., 203 Mo.App. 324; Hauser v. Bieber, 271 Mo. 326. (3) Vaughn v. Hines, 206 Mo.App. 425; Pandjiris v. Hartman, 196 Mo. 548; Thompson v. Buchholz, 107 Mo.App. 121. (4) Hartley v. McKee, 86 S.W.2d 359.

George A. McDonald pro se.

(1) Castorina v. Herman, 340 Mo. 1026; Spears v. De Clue, 133 S.W.2d 1044; Peerless Fix. Co. v. Frick, 123 S.W. 2d 1089; Aeolian Co. v. Boyd, 138 S.W.2d 692; Clark v. Atchison & Eastern B. Co., 324 Mo. 544; Respondent's Additional Abst., pp. 12, 13; Nulton v. Crosky, 111 Mo.App. 18; Warren v. Cowden, 167 Mo.App. 465; Utz v. Dorman, 328 Mo. 258. (2) Mason v. Downtown Garage, 227 Mo.App. 297. (3) 5 C. J., p. 385, par. 1. (4) Wehmeyer v. Mulvihill, 150 Mo.App. 197; Kennedy v. Lear, 164 Mo.App. 406; State v. Boyd, 108 Mo.App. 518; State v. Grant, 76 Mo. 235; State v. Hancock, 73 Mo. 19. (5) Sec. 7543, R. S. Mo. 1929; Charter of the City of St. Louis; Cramer v. Harmon, 126 Mo.App. 54; Wehmeyer v. Mulvihill, 150 Mo.App. 197, 205; Kennedy v. Lear, 164 Mo.App. 406; Peterson v. Fleming, 297 S.W. 163; Greaves v. K. C. Junior Orph., 80 S.W.2d. (6) Richardson v. Empire Trust Co., 230 Mo.App. 580; Singleton v. Ex. Co., 172 Mo.App. 299; Ahern v. Collins, 39 Mo. 145; Burton v. Drennan, 332 Mo. 312. (7) Tiede v. Fuhr, 264 Mo. 631, p. 3, which cited Ahern v. Collins, 39 Mo. 151; Dunlevy v. Wolferman, 106 Mo.App. 51.

ANDERSON, J. Hughes, P. J., and McCullen, J., concur.

OPINION

ANDERSON, J.

This is an action for false arrest, brought against George A. McDonald, E. A. Roworth, and others. At the close of the whole case, the court directed a verdict in favor of all defendants except defendants McDonald and Roworth. The jury returned a verdict for defendant Roworth and against defendant McDonald for $ 1200 actual damages. On motion of defendant McDonald, the court set aside the verdict against McDonald, specifying as grounds for his action error in giving and reading to the jury plaintiff's instructions 2 and 3.

The petition alleged that on September 12, 1932, defendants wilfully, intentionally, wrongfully, and unlawfully caused a member of the police force to arrest the plaintiff and compel him to go with said police officer to the police station, and restrained plaintiff of his liberty for approximately one hour, all against his will, and without any warrant or process of law authorizing the making of said arrest or inflicting said imprisonment; that as a result plaintiff was greatly humiliated, shocked, and insulted, and caused great mental anguish and distress, and his good name and reputation were injured. The petition further alleged that said arrest was malicious. Actual and punitive damages were prayed. Defendant answered by a general denial.

The evidence bearing on the issues raised on this appeal was substantially as follows:

Charles Engelbrecht testified that on the night of September 12, 1932, he and his wife went to the Macon School Building to attend a meeting of the Central Twenty-fourth Ward Improvement Association, and as he entered the hall he met Mr. Swarthout, who said to him, "You are not a member." Plaintiff replied, "Yes, I am." Thereupon Swarthout said, "Let's see your membership card." Plaintiff showed Swarthout his membership card and then went into the hall, taking a seat in the rear. When the meeting opened, Mr. Roworth, the president of the association, requested those who were not members to leave the room. Nobody left and Mr. Roworth said, ". . . Mr. and Mrs. Engelbrecht--will please leave the room." Plaintiff then got to his feet and announced that he had come to the meeting to find out why his membership was discontinued, and Roworth replied that he did not have to tell him. Plaintiff thereupon stated that he would not leave until he found out, or unless it was left to a vote of the people in the hall. Roworth replied that they did not have to do that.

Plaintiff further testified that defendant McDonald then said to Roworth, "Have them arrested; I will go down and press the charges." McDonald then went to the door and started talking to a police officer. Plaintiff got up to see what they were talking about, and the police officer asked him if he would go peaceably or if he should call the wagon. Plaintiff replied that it would not be necessary to call the wagon, that he would go down in his own machine, and that the officer could go with him. Swarthout then asked McDonald if he wanted him to go along, and McDonald replied, "No, I will handle it myself."

Plaintiff further testified that at the police station the desk sergeant asked what the trouble was, and the officer told him it was some little disturbance in a meeting. The sergeant then asked McDonald what he wanted to do about it, and McDonald replied, "I don't know whether to make it a disturbance of the peace charge, or make it hard for him and put a State charge, a misdemeanor charge against them." McDonald then said, "If he stays away from the meeting tonight, we won't put no charge; we will drop it." Plaintiff then agreed to stay away from the meeting and was released. After leaving the police station McDonald said to plaintiff, "You ought to be glad we got you out of there. We had it fixed to get you, to give you a trimming for yourself."

Mrs. Engelbrecht testified that she accompanied her husband to the meeting. When they arrived she heard Mr. Swarthout say to her husband, "Mr. Engelbrecht, you are no longer a member of this association." Her husband replied, "Oh, yes, I am." Swarthout then asked to see his membership card and her husband held out his card to him. She and her husband then went into the meeting place, taking seats in the rear of the hall. When Mr. Roworth called the meeting to order, he said, "All those that are not members please step out of the meeting room." No one left, and he made the announcement again, adding: "Mr. and Mrs. Engelbrecht will please leave the hall." Mr. Engelbrecht protected that he was a member, and Mr. Roworth said: "No, Mr. Engelbrecht, you are no longer a member." Her husband said: "That is what I came up to find out about." Then Roworth asked: "Didn't you receive a letter to that effect?" Plaintiff replied: "Yes, but I came up to find out why. That letter didn't state why. I want to leave it to a vote of the people and let them decide what to do." Mr. Roworth then said: "I don't have to do that--We don't have to do that." To this her husband replied: "The only way you can get me out, then, is to take me out, or whatever you want to do."

Witness further testified that Mr. McDonald thereafter said: "The only thing to do is have him arrested." The policeman stepped inside the door, and McDonald said he would go down and press the charges. Her husband got up and approached the officer and the latter asked him whether he was ready and whether he would go peaceably. They then went to the police station.

The witness corroborated her husband's testimony as to what transpired at the police station.

Defendant McDonald, testifying in his own behalf, stated that at the beginning of the meeting Mr. Roworth announced that the meeting was a closed one for the purpose of electing officers, and Mr. Engelbrecht said, "Well, the only way to get me out is to throw me out." A police officer came in and said something to Engelbrecht, and then asked, "Will somebody go with me?" McDonald replied, "Yes, I will go with you and be a witness this man is disturbing the peace and is inciting a riot. "

McDonald further testified, "So I decided the best thing to do--I had him arrested. So the officer asked for somebody to go along and I said, 'Yes,' I would go along. I took it upon myself to get Mr. Engelbrecht out of there; I took it upon myself to go with that police officer."

Further testifying defendant stated that when asked at the police station what the charge was, he replied, "Either peace disturbance or inciting a riot. You can make police court out of it or a misdemeanor. We don't want to prosecute this man. We don't want to prosecute him, but he is causing trouble. I wanted to get him out of there and if he promises to stay away from those meetings there will be nothing more to it."

On cross-examination defendant testified: "The officer asked some one to go along to prefer the charge, to get him out of there, and I volunteered to go absolutely to get him out of the building and prefer the charges, if there were any charges. I withdrew them afterwards. I went along to prefer them absolutely. It was at my request that the officer and this man went to the station."

Richard C. Ray, the police officer, testifying for plaintiff, stated that on the occasion in question he was in the hall of the building when someone...