Gantz v. Hames

• Decision Date: 09 May 1975
• Docket Number: No. 1844-A,1844-A
• Citation: 114 R.I. 586,337 A.2d 234
• Parties: Anna GANTZ, p.p.a. v. William J. HAMES. ppeal.
• Court: Rhode Island Supreme Court

Page 234

337 A.2d 234

114 R.I. 586

Anna GANTZ, p.p.a. v. William J. HAMES.

No. 1844-Appeal.

Supreme Court of Rhode Island.

May 9, 1975.

[114 R.I. 589] Aram K. Berberian, Cranston, for plaintiff.

Louis A. Mascia, City Sol., Steven S. Saber, Asst. City Sol., Providence, for defendant.

OPINION

JOSLIN, Justice.

Anna Gantz, a minor suing in the name of her father, brought this action of trespass ¹ in the Superior Court for assault and battery, for false imprisonment, and under 42 U.S.C.A. § 1983 (1958) for the violation of certain constitutional rights. The defendant's demurrer to the federal remedy count was sustained, and the case then went to trial on the other two counts before a judge and jury. At the close of the plaintiff's case the trial justice granted the defendant's motion for a directed verdict, and the plaintiff appealed.

The defendant was called by plaintiff and cross-examined under the adverse witness statute, G.L.1956 (1969 Reenactment) § 9-17-14. He was the only witness to testify, and it appears from his testimony that at about 9:30 p.m. on June 1, 1963, when he was the desk sergeant on duty at the central police station in the city of Providence, plaintiff complained to him that the bus starter stationed in front of the City Hall had not properly responded to an inquiry she had made, and she admitted that she thereupon slapped him in the face. When her story was confirmed by the bus starter, defendant told her that in the circumstances he thought the bus starter, rather than she, had cause to complain. The plaintiff became very excited, and started 'hollering' and 'screaming' that she wanted the bus starter arrested and charged. Attempts to calm her proved unsuccessful, and she was taken to the women's detention room where she was held for about half an hour. She was then released in her mother's custody, and no charges were preferred. The defendant also testified that prior to her release plaintiff had not been free to leave the detention room.

Following this testimony plaintiff rested, and the trial justice granted defendant's motion for a direction on the assault and battery count because there was no evidence whatsoever to support it, and on the false arrest count because plaintiff admitted having slapped the bus starter without provocation. In the trial justice's judgment, that was an admission of a misdemeanor giving defendant probable cause for the arrest.

Questioning only the direction on the false arrest count, plaintiff contends that a peace officer cannot arrest for a misdemeanor without a warrant unless the offensive act has been or is being committed in his presence. This was at least in part true at the common law, which permitted a peace officer to make warrantless misdemeanor arrests only for breaches of the peace committed in his presence. Kominsky v. Durand, 64...