Gibson v. Ducker

• Decision Date: 07 April 1913
• Citation: 155 S.W. 462,170 Mo. App. 135
• Parties: GIBSON v. DUCKER et al.
• Court: Missouri Court of Appeals

155 S.W. 462

170 Mo. App. 135

GIBSON v. DUCKER et al.

Springfield Court of Appeals. Missouri.

April 7, 1913.

1. APPEAL AND ERROR (§ 854) — REVIEW — ORDER GRANTING NEW TRIAL.

An order granting a new trial will not be disturbed on appeal because the trial court gave an erroneous reason therefor, if a correct reason appearing from the record is pointed out by appellee.

2. APPEAL AND ERROR (§ 979) — REVIEW — NEW TRIAL — JUDICIAL DISCRETION.

An order granting a new trial on the ground that the verdict is against the weight of the evidence will not be disturbed on appeal, unless the discretion of the trial judge has manifestly been abused.

3. NEW TRIAL (§ 163) — GROUNDS.

An order granting a new trial after verdict for plaintiff on the ground that the testimony was insufficient to connect defendants with the arrest sued on, and on the ground that the court erred in not sustaining the demurrer of such defendants to plaintiff's evidence, shows that the new trial was not granted on the ground that the verdict was against the weight of the evidence.

4. FALSE IMPRISONMENT (§ 31) — EVIDENCE — SUFFICIENCY.

In an action against the proprietors of a hotel and a police officer for unlawful arrest of plaintiff, evidence held to sustain a finding that defendant hotel keepers participated in plaintiff's arrest and detention.

5. MASTER AND SERVANT (§ 300) — TORTS OF EMPLOYÉ — EMPLOYÉ'S RESPONSIBILITY.

An employer is civilly liable for the wrongful acts of his servants, whether of omission or commission, done in the course of their employment, though he did not authorize or know thereof.

Appeal from Circuit Court, Butler County; Jesse C. Sheppard, Judge.

Action by John M. Gibson against C. M. Ducker and others, partners as C. M. Ducker & Sons, and another. From an order granting a new trial after verdict for plaintiff, he appeals. Reversed, with directions.

This was a suit for damages for an alleged unlawful arrest in which the plaintiff prevailed before a jury. The court sustained a motion for a new trial, and plaintiff has appealed, alleging this action on the part of the court as error.

It appears from the record that plaintiff was a traveling salesman (and, incidentally, a licensed attorney), and that he stopped as a guest at the Wright Hotel, in the city of Poplar Bluff, conducted by C. M. Ducker & Sons, on the night of February 25, 1912. It may be stated here that this firm was composed of defendants C. M. Ducker, W. S. Ducker, and L. R. Ducker. Plaintiff remained as a guest at the hotel until about 1 or 2 o'clock the next afternoon. He did not return to the hotel to take his dinner until between 1:30 and 2 o'clock p. m., after the regular dinner hours and after the dining room doors had been closed, and was compelled to go to a restaurant for that meal. When he was ready to settle his bill at the hotel, W. S. Ducker, who was in charge of the office, demanded that he pay the sum of $1.50 — for lodging, breakfast, and dinner — the hotel being operated on the American plan with rates of $2 per day. The plaintiff refused to pay for the dinner he did not get and left $1 on the counter to pay for lodging and breakfast, and took his grips and went to the depot to leave on a south-bound train. While he was waiting in the depot, W. S. Ducker and W. F. Lambert, one of the regular police officers of the city of Poplar Bluff, approached him. The plaintiff's testimony is that Lambert informed him the Duckers were running a first-class hotel and that they claimed he was owing 50 cents, and said, "You will have to go up there and pay that up"; that he told the officer he didn't know that it was any of his business and that he had settled, to which the officer replied by saying that, "If, I didn't go back there and pay that bill, he wouldn't let me leave right there until I paid it. He would take me to jail, he says"; that on asking the officer if he had a warrant, the officer answered that he did not, but that he didn't have to have a warrant to arrest him; that the officer raised his club and informed plaintiff that he had been an officer for 8½ years, and said, "Do you mean to tell me I don't know my business?" The plaintiff testified that at the time the officer told him he could make the arrest, W. S. Ducker was present, but that Ducker then left them, and that it was after this that the officer raised his club in a menacing manner. Plaintiff further testified that he was compelled to go back to the hotel with the officer, and that when he reached the hotel in company with the officer he called several witnesses before he paid the 50 cents, telling them he wanted them as witnesses in a transaction; that he was being made to pay money he did not owe; that when he paid the 50 cents, W. S. Ducker gave him a receipt for three-fourths of a day, paid in full; and that the officer stood around a few minutes after the payment and then left.

The deposition of James H. Looney was read in evidence by the plaintiff. It shows that he was present in the hotel office when the officer and plaintiff came back, and witnessed the payment of the 50 cents, and saw those present at the time — W. S. Ducker, the officer in uniform, the plaintiff, and several others — that plaintiff stated that he had been arrested and returned to the hotel; that W. S. Ducker then said that plaintiff had not been arrested but only detained, and that the officer made practically the same statement; that plaintiff then paid the 50 cents and was given a receipt; that in a conversation with Ducker the next day "Mr. Ducker told me it was not his custom to treat people in this manner, but he had sent the policeman down after Mr. Gibson just to show him he could collect that extra 50 cents"; also that he had a conversation with the policeman, who said "he had authority to arrest the man in a case like that."

The officer, Lambert, one of the defendants, testified in part as follows: "Mr. Ducker came down there; I was at the depot, myself. Mr. Ducker says, there is a man here in the depot that owes me 50 cents, I wish you would collect for me. I says, `All right, I will do my best.' He showed me the man. This is the man here (indicating). I went to him. I says: `You owe this man any money? If you do, why he wants me to collect it; you had better pay it.' He says, `I don't owe him anything.' I says, `Well, I don't know that you do myself.' He argued around there a little while, and I says, `Well, you had better get your grip and go up the hill to him and settle that bill without any trouble about this thing,' so he picked up his grip and went up the hill. I walked along by the side of him, and I supposed he settled the bill. I don't know that he did. Q. You heard Mr. Gibson testify to your conversation, in which you menaced him or drew your club there in the smoking room. Tell the jury whether that happened or not. A. No, sir; we have to carry our billy in our hands; we have to do that; that is the orders from the chief of police and approved by the mayor; we have to carry our clubs in our hands while on duty. I did not tell Mr. Gibson at the time that I was putting him under arrest. I did not tell him he was arrested at all. I did not take hold of him in any way. He said, `You can't arrest me here.' I said, `I can arrest any man that violates the law of the state of Missouri or the city of Poplar Bluff without a warrant,' which is a fact." On cross-examination he was asked: "Were you undertaking to collect that bill for Mr. Ducker?" His answer was: "Well, I didn't undertake to collect it at all. I told him, if he owed the bill, that was the way to keep out of trouble. I meant he was liable to get into a lawsuit or something of that kind. I was not advising him as counsel. I am no lawyer. I was advising him. I don't know whether he owed it or not. He said he didn't owe it. Q. Did you pick up his grips and go with him to the hotel? A. Walked along at the side of him. Right up with him."

The following appears in the testimony of W. S. Ducker: "I went down to the depot to see Mr. Lambert, to get him to collect the balance due. I went to Mr. Lambert because he is an officer. He is not a lawyer. I don't think he is a justice of the peace. I don't think he is a constable. He is an officer."

It further appears that a number of people were present both at the depot and in the hotel office when Lambert played his part in the collection of the 50 cents.

The jury returned a verdict in favor of the plaintiff for actual damages in the sum of $150 and for punitive damages in the sum of $100. The defendants filed a motion for a new trial alleging eight grounds, but for the purpose of determining this case it will be necessary to show only the first and the sixth, and they are as follows:

"(1) Because the verdict is against the evidence and the weight of the evidence."

"(6) Because the court erred in refusing the instruction in the nature of a demurrer to the evidence offered by the defendants C. M. Ducker, W. S. Ducker, and L. R. Ducker, at the close of the evidence offered by the plaintiff, over the exceptions of the defendants."

The court in its order sustaining defendants' motion for a new trial gave certain reasons, as follows: "And the court having now seen and heard said motion for a new trial, and being fully advised in the premises, all and singular, doth sustain the said motion as to all the defendants, for the reason that the testimony introduced in this cause is insufficient to connect the defendants C. M. Ducker, W. S. Ducker, and L. R. Ducker with the...