Hanser v. Bieber
| Decision Date | 30 June 1917 |
| Parties | EMIL HANSER, Appellant, v. JACOB BIEBER, PHILIP BIEBER and SOPHIE BIEBER |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Rhodes E. Cave Judge.
Reversed and remanded.
Sale & Sale and A. B. Frey for appellant.
The court erred in giving the instruction in the nature of a demurrer to appellant's (plaintiff's) evidence on his first cause of action, to-wit, that in false imprisonment. (1) In passing on a peremptory instruction in the nature of a demurrer to plaintiff's evidence, the court must consider the evidence introduced by plaintiff as true, and make every finding and deduction in his favor which the jury would have been warranted in making. Meenach v. Crawford, 187 S.W. 882; Williams v. Railroad, 257 Mo. 112, 52 L R. A. (N. S.) 443; Grouch v. Heffner, 184 Mo.App 372. (2) False imprisonment is any direct unlawful restraint of a person's liberty. 11 R. C. L. sec. 2. (3) It takes less to make a case of false imprisonment than one of malicious prosecution. In false imprisonment it is not necessary to prove malice, or want of probable cause. The lack of malice, or the belief in the guilt of the accused, do not constitute a defense by a private citizen who causes the arrest of another citizen. Pandjiris v. Hartman, 196 Mo. 545; Monson v. Rouse, 86 Mo.App. 102; Thompson v. Bucholz, 81 S.W. 490; McCaskey v. Garrett. 91 Mo.App. 358. (4) The only justification that a citizen has who orders a police officer to make an arrest for an alleged violation of a city ordinance not committed in the presence and view of the police officer, is that the ordinance was actually violated. and the determination of that issue is a question for the jury. Pandjiris v. Hartman, 196 Mo. 539; Taafe v. Slevin, 11 Mo.App. 507; Thompson v. Bucholz, 81 S.W. 490; Ross v. Leggett, 61 Mich. 445; McGarrahan v. Lavers, 15 R.I. 302; Grimes v. Greenblatt, 47 Colo. 495; Grinnell v. Weston, 95 A.D. 454; Park v. Taylor, 55 C. C. A. 56; Palmer v. Railroad, 92 Me. 399; Wehmeyer v. Mulvihill, 150 Mo.App. 197. (5) The same state of facts may give rise to two causes of action, one for false imprisonment, and the other for malicious prosecution. 19 Cyc. 358; Boeger v. Langenberg, 97 Mo. 390; Guest v. Warren, 9 Ex. Rep. 378; Bradner v. Faulkner, 93 N.Y. 578; Krug v. Ward, 77 Ill. 603; Bauer v. Clay, 8 Kas. 580; Berger v. Saul, 113 Ga. 869; Long v. Judge, 27 Mich. 164; Scott v. Flowers, 60 Neb. 675; Railroad v. Rice, 36 Kan. 600; Stout v. Omaha Co., 97 Neb. 818. The respondents caused and ordered a police officer to arrest the appellant for an alleged violation of a city ordinance, to-wit, a disturbance of the peace, which alleged offense was not committed in the presence of the officer, and then the respondents some time later charged the appellant before the police representative, who issues information, with the same offense, and prosecuted him therefor. The appellant was adjudged "not guilty." This gave rise to two possible causes of action, one for false imprisonment, the other in malicious prosecution. While there could be but one recovery on the same state of facts, the appellant had the unquestioned right to set up his cause of action in two different ways. To deny the appellant this right, and to hold that he could not recover as a matter of law on either cause of action was to deny him any redress for the wrongful interference with his personal liberty. It was likewise violative both of the common law and code procedure to hold inferentially as was done in this case that appellant's action, if any, was in malicious prosecution and then to hold he could not recover therein. Boeger v. Langenberg, 97 Mo. 390; Brinkman v. Hunter, 73 Mo. 172; Milton v. Dairy Co., 175 S.W. 108; Palmer v. Railroad, 92 Me. 399; McMorris v. Howell, 85 N.Y.S. 1021, 89 A.D. 272; Stout v. Omaha Co., 97 Neb. 817. While there is a distinction between the liability of a police officer who makes an arrest, and a private citizen, still the courts have held that even a police officer is liable for making an arrest for the alleged violation of a city ordinance not committed in his presence and view, unless the ordinance has actually been violated. A fortiori, a private citizen, who causes the arrest to be made, is liable. Stittgen v. Rundel, 90 Wis. 80; Quinn v. Heisel, 40 Mich. 576; Pesterfield v. Vickers, 3 Cald. (Tenn.) 205; Pinkerton v. Verberg, 78 Mich. 573; Newton v. Locklin, 77 Ill. 103; Parke v. Gilligan, 14 Misc. 123; Ross v. Leggett, 61 Mich. 445. (6) The defendants Philip and Sophie Bieber, having actually caused the arrest, are liable, because it was their own tort. McMorris v. Howell, 89 A.D. 272, 85 N.Y.S. 1018; Burk v. Howley, 179 Pa. 539; Boeger v. Langenberg, 97 Mo. 390; McGarrahan v. Lavers, 15 R.I. 302; Ross v. Leggett, 61 Mich. 445. The defendant Jacob Bieber is liable for the following reasons: (a) The defendants Philip and Sophie Bieber were his agents and servants in charge of the business, and were acting within the apparent scope of their authority; (b) Jacob Bieber was present before the arrest was consummated, learned of the facts, assented sub silentio, made no protest against the arrest, and permitted his employees and co-defendants to depart with the police officer to renew the charge; and (c) it may be inferred that Jacob Bieber had planned some such action as this in order to strengthen the case that he proposed to bring against the Century Building Co., Knowles v. Bullene, 71 Mo.App. 341; Monson v. Rouse, 86 Mo.App. 97; Cooper v. Johnson, 81 Mo. 483; Grimes v. Greenblatt, 47 Colo. 499; Singleton v. Ball Co., 172 Mo.App. 229. (7) The court erred in sustaining the demurrer to appellant's evidence on the second cause of action -- that in malicious prosecution. Appellant was convicted by a police magistrate of the charge of disturbing the peace of one of the defendants, and fined ten dollars, but on a trial de novo on appeal to the Criminal Court of Correction, a court of record, was adjudged not guilty. The correct rule is, and should be, that a conviction by a police magistrate or justice of the peace is not conclusive evidence of probable cause, but is evidence which should be submitted to the jury along with the other evidence in the case. To establish the rule that a conviction by a police magistrate is conclusive evidence of probable cause is to do a manifest injustice to various persons who are brought in without cause before these magistrates, are fined, and then are immediately acquitted in a trial de novo in the courts of criminal correction. Michelson v. Sternberg, 61 A.D. 54; Skeffington v. Eylward, 97 Minn. 246; Goodrich v. Warner, 21 Conn. 443; Nelson v. Harvester Co., 117 Minn. 301; Moffitt v. Fisher, 47 Iowa 473.
Schnurmacher & Rassieur for respondents.
(1) If plaintiff is entitled to damages, upon the facts in this case, it must be either for false imprisonment or malicious prosecution -- it cannot be both. Nor can there be any election of remedies. False imprisonment implies an unlawful arrest, -- an arrest without lawful authority in the person making it, to make it. If the arrest was lawful, that is under lawful process, or as a step in the prosecution, then the action must be for malicious prosecution. 1 Cooley on Torts (3 Ed.), p. 315; Finley v. Refrigerator Co., 99 Mo. 559; Wehmeyer v. Mulvihill, 150 Mo.App. 197; Dunlevy v. Wolferman, 106 Mo.App. 50; Dougherty v. Snyder, 97 Mo.App. 495; Bierwith v Pieronnet, 65 Mo.App. 431; 19 Cyc. 321, 322 (notes). Here the arrest was lawful. It was the first step in the prosecution. It was the same as if a warrant for the arrest had been previously issued. In the city of St. Louis, a police officer, under the statute, in making an arrest for a misdemeanor (whether under the law or the city ordinances) requires no warrant, if he has reasonable ground for believing that a misdemeanor has been committed. The fact that the prisoner is ultimately acquitted, does not convert the arrest into an unlawful one. State v. Hancock, 73 Mo.App. 19; State v. Boyd, 108 Mo.App. 518, 196 Mo. 52; Grayson v. Transit Co., 100 Mo.App. 73; Wehmeyer v. Mulvihill, 150 Mo.App. 197; State v. Grant, 76 Mo. 236. Nor can there be a splitting of the cause of action. If the arrest and prosecution were without probable cause and actuated by malice, there is nevertheless but one tort for which the defendants are liable -- that is malicious prosecution. It cannot be said that the arrest by the officer furnishes one cause of action, and the prosecution of the charge another. Leonard v. Transit Company, 115 Mo.App. 349. The damages inflicted by the arrest are part of the damages recoverable for the malicious prosecution. The arrest is but the preliminary step in the prosecution. Ruth v. Transit Co., 98 Mo.App. 1; Leonard v. Transit Co., 115 Mo.App. 349. (2) In an action for malicious prosecution, it is incumbent upon plaintiff to show that there was an absence of probable cause for his arrest. A judgment of conviction (that is, upon a trial, as distinguished from a mere preliminary hearing before a committing magistrate), is conclusive as to the existence of probable cause, unless the conviction was procured through fraud on the court, or possibly through perjury, etc. To deprive the judgment of conviction of this conclusiveness, facts must be alleged and proved, which impugn the integrity of the judgment. This is true even though the judgment of conviction be afterward set aside on appeal. Here there were no such allegations or proofs. Boogher v. Hough, 99 Mo. 183; Live Stock Co. v. Butchers' Union Co., 120 U.S. 140; Saunders v. Baldwin, 112 Va. 431, 34 L. R. A. (N. S.) 958; Haddad v. Railroad, 88 S.E. 1038; Topolewski v. Packing Co., 143 Wis. 52; Smith v. Thomas, 149 N.C. 100; Price v. Stanley, ...
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