Hanser v. Bieber

Citation197 S.W. 68,271 Mo. 326
Decision Date30 June 1917
Docket NumberNo. 18454.,18454.
PartiesHANSER v. BIEBER et al.
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

Suit by Emil Hanser against Jacob Bieber and others. Defendants' demurrer to evidence sustained, and plaintiff appeals from court's refusal to set aside nonsuit. Reversed.

Sale & Sale and A. B. Frey, all of St. Louis, for appellant. Schnurmacher & Rassieur, of St. Louis, for respondents.

WALKER, J.

This suit was instituted in the circuit court of the city of St. Louis. The petition is in two counts, one alleging false imprisonment, the other malicious prosecution. The court sustained a demurrer to both counts at the close of plaintiff's testimony. From the court's refusal to set aside the nonsuit necessitated by its ruling on the demurrer, the plaintiff appeals.

Plaintiff, then an employé of a glass company, went, on July 20, 1913, under the direction of his employer, to make certain measurements of windows in the Century Building in the city of St. Louis to enable his employer to bid upon some plate glass to be furnished in the reconstruction of the building. In the discharge of this duty he entered the rooms on the second floor of said building occupied for mercantile purposes by the defendant Jacob Bieber. On entering plaintiff explained his errand to an employé, who making no reply, plaintiff proceeded to the windows and commenced measuring them. While calling out the sizes to an assistant the defendant Philip Bieber, an employé, or having an interest in the store, entered and ordered them out. After an ineffectual effort to explain their business they started towards the door. When within a few feet of it Philip Bieber called out "Sophie," whereupon a Miss Bieber, one of the defendants and also an employé of Jacob Bieber, appeared and pushed or shoved the plaintiff as he was backing out of the door, and, upon his attempting to explain their presence, she said she was going to have them arrested. Soon thereafter, while plaintiff and his assistant were measuring windows elsewhere in the building, a police officer, accompanied by Miss Bieber, approached, and she pointed them out, saying, "Those are the men." The officer asked why she desired the arrest made, and she said, "For disturbing our peace." The officer replied that the men were at work, and they did not look like they were disturbing any one's peace. Miss Bieber insisted on the arrest being made, and plaintiff and his assistant were informed by the officer that they were under arrest. Jacob Bieber, the proprietor of the store, also a defendant, saw plaintiff and his assistant in custody of the officer as they were being taken out of the building, and was informed of the facts by Sophie Bieber at the time of the arrest, as he was also by Philip Bieber a few minutes thereafter. A patrol wagon such as is employed in conveying prisoners charged with crime to police stations was called, and plaintiff and his assistant were placed therein and were conveyed in the custody of officers to a police station on Clark avenue. Philip and Sophie Bieber followed the officers when they took the plaintiff and his assistant into custody and were present while they waited for a time at Eleventh and Pine streets for the patrol wagon. Arriving at the station, to which Philip and Sophie Bieber had also repaired, charges were preferred against the plaintiff and his assistant for disturbing the peace, with Philip and Sophie Bieber as complaining witnesses. While in custody at the police station an officer started to search the plaintiff, but was notified by the desk sergeant that this was not necessary. After giving personal bonds in the sum of $300 each for their appearance, they were, after half an hour's detention, released. Thereafter, upon a trial before a police court, they were found guilty and fined. Upon an appeal to the court of criminal correction the judgment of the police court was reversed, and plaintiff and his assistant were discharged.

I. In filing a demurrer to plaintiff's evidence the demurrant admits the truth of same and the conclusions a jury may reasonably draw therefrom. Hence a trial court, in passing upon such a demurrer, must consider the evidence to be true, and in so doing draw every inference in its favor that the law will warrant. Thus much for the rule, well established in our procedure, by which we are to determine the trial court's correctness in ruling upon the demurrer filed herein. Meenach v. Crawford, 187 S. W. loc. cit. 882.

II. False imprisonment consists of the direct restraint of personal liberty. To establish it want of probable cause and of malice need not be proved. Tiede v. Fuhr, 264 Mo. loc. cit. 625, 175 S. W. 910. Unlawful detention is the basis of the action. Actual seizure or the laying on of hands is not necessary to constitute an unlawful detention. If the party is within the power of the person making the arrest, and, subject to such power, but not of his own will, goes with his captor, it is an arrest such as is contemplated to authorize an action for false imprisonment. Ahern v. Collins, 39 Mo. 146; Fellows v. Goodman, 49 Mo. 62; Dunlevy v. Wolferman, 106 Mo. App. loc. cit. 51, 79 S. W. 1165. We said in Tiede v. Fuhr, supra, that the character of the restraint, however courteous, would not destroy the plaintiff's right of action if it appeared that the writ under which he was held was without justification; and in a well-considered case by the Kansas City Court of Appeals (Singleton v. Exhibition Co., 172 Mo. App. loc. cit. 307, 157 S. W. 964), it was held that if in the exercise of his authority an officer commands a person to accompany him and takes him to a place where persons arrested are usually taken and the person taken goes in submission to such authority and not of his own volition, this constitutes an arrest. This is in accord with the current of authority on this subject.

Let us recall briefly the vital facts in the instant case: The officer, under the direction of defendants, took plaintiff into custody, placed him in a patrol wagon, and conveyed him to a police station where a charge was preferred against him for disturbing the peace, the defendants Philip and Sophie Bieber being entered as complaining witnesses. To compel his appearance at a hearing he was held to bail. Tried before a police court he was found guilty. On appeal to the court of criminal correction he was acquitted.

In Pandjiris v. Hartman, 196 Mo. 541, 94 S. W. 270, in which the issuable facts had their origin in the city of St. Louis, we said:

"It is the right and privilege of any citizen knowing that one has committed, or is in the act of committing, a crime to arrest the offender, or cause him to be arrested without waiting for a warrant, but in doing so the unofficial citizen takes this risk, to wit, if it should turn out that the man whom he has arrested was not guilty of the crime, the citizen causing the arrest is liable in a civil action for whatever damages the arrested man sustained in conseqence of his arrest and imprisonment. In such case it is no answer to the plaintiff's demand for damages for the defendant to say: `I had reasonable cause to believe the plaintiff was guilty; I acted without malice; I took the advice of counsel learned in the law.' The only plea of justification or excuse is that plaintiff was guilty of the crime for which he was arrested."

The court's reasoning in the Pandjiris Case is based upon facts sufficiently parallel to those in the instant case to authorize the application of the conclusion there reached to the latter. Thus applied, it follows, as expressly stated in that case (196 Mo. 548, 94 S. W. 270), that the plaintiff made out a prima facie case when he introduced evidence tending to show that defendants had caused his arrest and detention without a warrant.

Defendants contend, however, despite these facts, that the arrest was lawful, and hence that they cannot be held answerable therefor. This contention is based on the statute (section 9805, R. S. 1909) applicable to cities of 300,000 or over, which authorizes police boards in such cities, through the instrumentality of the police force, to "prevent crime and arrest offenders." This statute, as construed by the St. Louis Court of Appeals in State v. Boyd, 108 Mo. App. 518, 84 S. W. 191, and, impliedly approved in a review of that case by this court (196 Mo. loc. cit. 59, 94 S. W. 536), is held to authorize a police officer within the jurisdiction defined to arrest for a misdemeanor not committed in his presence provided he has reasonable grounds to suspect that the offense has been committed. The construction given the statute is a salutary one. Any one at all familiar with civil conditions in cities as contradistinguished from the country realizes that greater power should be given police officers to preserve the peace and arrest offenders in cities than is given to peace officers elsewhere. The court's interpretation of the statute, therefore, is no more than a recognition of this fact, and arises, as have many of our laws defining crimes and regulating criminal procedure, out of the necessities of metropolitan life. Arising, as the statute does, out of necessity and impinging in its application on the liberty of the individual, the courts have been wisely wary to so limit its enforcement as to afford the least possible danger to the rights of the individual.

Hence the court's proviso in its interpretation of the statute that the officer must have "reasonable grounds to suspect that a crime has been committed" before an arrest is authorized. The existence of such reasonable grounds rests upon the facts in each particular case, and their force and sufficiency must be determined by the officer before he acts; otherwise there would be no limitation upon the power thus granted, and human liberty would be subject to the whim and caprice of police officers...

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