Gunderson v. Struebing

• Decision Date: 02 May 1905
• Citation: 104 N.W. 149,125 Wis. 173
• Parties: GUNDERSON v. STRUEBING.
• Court: Wisconsin Supreme Court

125 Wis. 173

104 N.W. 149

GUNDERSON

v.STRUEBING.

Supreme Court of Wisconsin.

May 2, 1905.

Appeal from Circuit Court, Outagamie County; John Goodland, Judge.

Action by Adolphus G. Gunderson against L. Struebing. Judgment for plaintiff. Defendant appeals. Reversed.

This is an appeal from a judgment against defendant in an action for false imprisonment. The complaint charges that defendant maliciously caused the arrest and imprisonment of the plaintiff without probable cause and without warrant or process, and caused him to be taken to the police station and searched by a police officer December 8, 1902, at Oshkosh, Wis. The answer is a general denial, and sets up, among other things, that defendant was a retail clothing merchant at Oshkosh, and shortly before the alleged arrest plaintiff and two other persons were in defendant's store, making purchases; that at the time a pair of gloves were stolen from defendant's store, and plaintiff's conduct created a suspicion that he had stolen them; that defendant communicated the facts to a police officer, leaving the officer to act upon his own judgment and responsibility; and that defendant in no manner directed, participated in, counseled, aided, or abetted the alleged arrest or false imprisonment. The answer further alleges that, if any arrest was made, it was made pursuant to an ordinance of the city of Oshkosh authorizing policemen to arrest without warrant any person reasonably suspected of having committed a misdemeanor. The action was tried before the court and jury. After the evidence was in, the court submitted to the jury nothing but the question of damages, and took from them and decided as matters of law the following questions: (1) That there was an arrest and false imprisonment; (2) that it was unlawful and without probable cause or justification; (3) that it was procured and instigated by the defendant; (4) that the defendant acted without malice; (5) that the defendant was liable for compensatory damages only. The jury found for the plaintiff in the sum of $150. Motion for new trial was made and denied. Due exceptions were filed. Judgment was entered for plaintiff for damages and costs, aggregating $198.88, from which defendant appealed to this court.Earl P. Finch (Fred Beglinger, of counsel), for appellant.

Jerry Mulloy and F. C. Stewart, for respondent.

KERWIN, J. (after stating the facts).

The main questions involved upon this appeal are whether the court erred in taking the case from the jury and directing a verdict for plaintiff upon the material facts. The evidence upon the trial tended to show that on the day in question the plaintiff, his brother, and a companion, comparative strangers in the city of Oshkosh, entered the store of defendant, where plaintiff purchased a cap and some mittens. He looked at gloves and mittens, and asked for a reduction in price, whereupon the clerk went to the back office and consulted defendant about such reduction. After plaintiff purchased the mittens, he and his companions left the store. Immediately thereafter the clerk who waited upon plaintiff missed a pair of gloves, and another clerk claimed to have seen plaintiff take the gloves from the show case and put them in his pocket. The conduct of plaintiff and his companions while in the store created suspicion. The facts and circumstances were stated to defendant by the clerk immediately after plaintiff and his companions left the store, whereupon he followed plaintiff; meeting Henry Frohrib, a police officer, whom he called aside, and to whom he stated what his clerks had told him, and pointed out the plaintiff. The officer, Frohrib, testified: That when he approached plaintiff he said, “I would like to see you down to the station a minute.” That he did not touch plaintiff or lock arms with him. That he did not lay hands upon him, and plaintiff walked with him to the station. When halfway to station, plaintiff asked him what he wanted of him, and the officer told him when he got to the station he would tell him. After arriving at the station the officer explained to plaintiff and his companions, and they consented to be searched. They remained at the station a few minutes. There was no force used upon the persons of the plaintiff or his companions. There is also evidence that defendant was not with the officer when he went with the boys to the station; that, after defendant was informed that the gloves had been stolen, he followed plaintiff and his companions until they got opposite Ben Read's store; that he met the officer, Frohrib, took him around the corner, and informed him of what his clerks had told him with reference to the taking of the gloves; that he did not tell the officer either to arrest plaintiff, take him to the station, or search him; that he only talked with the officer a few seconds. There is evidence on the part of the plaintiff that the officer said, “I want you,” locked arms with him, and walked to the station. This is denied by the officer. After defendant informed the officer, he walked back to his store, remained there a few minutes, and then went to the station to ascertain the result of the search and to get his gloves--expecting to find them there after being taken from the man he had pointed out to the officer--but was informed by the officer that he had found nothing. Defendant saw plaintiff after he left the police station, and had some talk with him, but could not remember just what was said. There is evidence on the part of the plaintiff and his companions in conflict with the testimony of defendant and the officer. It also appears that Torsud, one of plaintiff's companions, has brought a similar action against defendant.

The evidence is capable of the construction that the officer may have intended to make no arrest, but to talk the matter over with plaintiff at the station, and ascertain, if he could, whether the report concerning the larceny was true. There was sufficient evidence to support an...