Harbison v. Chicago, R. I. & P. Ry. Co.

• Citation: 37 S.W.2d 609,327 Mo. 440
• Decision Date: 31 March 1931
• Docket Number: 28516
• Parties: W. T. Harbison, Administrator of Estate of Samuel M. McCowan, v. Chicago, Rock Island & Pacific Railway Company and S. M. Filipczak, Appellants
• Court: United States State Supreme Court of Missouri

37 S.W.2d 609

327 Mo. 440

W. T. Harbison, Administrator of Estate of Samuel M. McCowan, v. Chicago, Rock Island & Pacific Railway Company and S. M. Filipczak, Appellants

No. 28516

Supreme Court of Missouri

March 31, 1931

Rehearing Overruled March 31, 1931.

Appeal from Sullivan Circuit Court; Hon. J. E. Montgomery Judge.

Reversed on the Slander Charge and reversed and remanded on the Charge of False Imprisonment.

Luther Burns, Henry S. Conrad, L. E. Durham and Hale Houts for appellants.

(1) The plaintiff was arrested and placed in jail under a valid warrant and by a public officer legally authorized to so act and no right of action arose against defendants for false imprisonment on account thereof. Rosendale v. Dry Goods Co., 213 S.W. 170; Hanser v. Vieder, 271 Mo. 326; Burnett v. Prince, 272 Mo. 78; Tiede v. Fuhr, 264 Mo. 630; Finley v. Refrigerator Co., 99 Mo. 562; Wehmeyer v. Mulvihill, 150 Mo.App. 205; 25 C. J. 470; Viewith v. Pieronett, 65 Mo.App. 433; State v. Halbrook, 279 S.W. 395; Sec. 25, Laws 1923, p. 244. (2) There was no evidence that defendant Filipczak instituted or procured the arrest of plaintiff, and therefore the defendants were not liable for that arrest regardless of its regularity. Caskey v. Garrett, 91 Mo.App. 359; Barnett v. Prince, 272 Mo. 78. (3) The court erred in not directing verdict for the defendants on the second count of plaintiff's petition. (a) There was no evidence of publication and therefore no case against either defendant. Nichols v. Ry. Co., 232 S.W. 277; Taylor v. White, 185 Mo.App. 330; Frazier v. Grob, 194 Mo.App. 444; Bloomshaft v. Klauber, 196 Mo.App. 229; Wrought Iron Range Co. v. Boltz, 123 Miss. 550. (b) There was, as a matter of law, a failure of proof that the defendant Filipczak was acting within the scope of his employment with defendant railway company in uttering the alleged slander, assuming that he did utter it. Milton v. Railroad Co., 193 Mo. 46; Fensky v. Casualty Co., 264 Mo. 166; Sacs v. Ry., 192 S.W. 418. (4) Plaintiff's Instruction 7, taken in connection with his instructions 1 and 5, authorized the jury to find malice upon the part of defendants for the purpose of recovery for false imprisonment and for the purpose of awarding exemplary damages therefor, regardless of whether the question of imprisonment was pursuant to an arrest under valid warrant or legal authority. Gann v. Ry. Co., 6 S.W.2d 45. (5) Plaintiff's Instruction 2 was erroneous in authorizing the jury to find for plaintiff upon the slander count without requiring the jury to find that the alleged slander was heard and understood as alleged, by some third person. Frazier v. Grob, 194 Mo.App. 414. (6) Instruction 1 improperly authorized the jury to find for plaintiff for false imprisonment because of the arrest and putting plaintiff in jail under such arrest, and improperly advised the jury that the issuance of the warrant for search and arrest, and the fact that defendant Filipczak was on the premises and assisted in making the search for liquor under said warrant at the request of David, would constitute no defense in favor of defendants for the alleged acts committed by said defendants, and plaintiff's Instructions 1 and 5, taken together, improperly authorized the jury to allow plaintiff damages both for arrest and for incarceration in jail under said arrest, although under a valid process and under authority of law. Gann v. Ry. Co., 6 S.W.2d 45. (7) Plaintiff's instructions Nos. 1 and 5, in submitting and authorizing the jury to award plaintiff damages for the alleged instigation by defendant Filipczak of refusal to allow plaintiff to be discharged upon bail, were erroneous. 6 C. J. 1023. (8) Testimony as to what was done by the Burlington special agents and by David, both in and out of the presence of defendant Filipczak, was immaterial and prejudicial.

E. M. Harber, Davis & Ashby, R. H. Musser, Gerald Cross and Pross T. Cross for respondent.

(1) Plaintiff made out a case of false imprisonment. (a) Even tho the warrant was valid, and the arrest in the first instance legal, yet the conduct of Filipczak in causing plaintiff to be unlawfully denied the right of bail, constituted false imprisonment. Secs. 3812, 3813, 3818, 3831, R. S. 1919; Ex parte Gowns, 99 Mo. 193; 25 C. J. 491-495; Gibbs v Randlett, 58 N.H. 407; Satterly v. Thornton, 188 Ky. 553, 222 S.W. 1088; Stetson v. Packer, 7 Cush. 562; Clark v. Tilton, 74 N.H. 330; Huber v. Walker, 62 Pa. S.Ct. 299; Wright v. Templeton, 80 Vt. 358, 130 Am. St. 990. (b) Even though the search warrant was valid and authorized a search for liquor, it constituted no authority to arrest plaintiff until after the discovery of liquor unlawfully possessed. The act of Filipczak in arresting and restraining plaintiff before the claimed discovery of liquor unlawfully possessed, went beyond the authority conferred by the warrant, was unlawful and constituted false imprisonment. Laws 1923, p. 245; Peterson v. Fleming, 297 S.W. 167. Under the evidence it was clearly a question for the jury as to whether the arrest of plaintiff was for the possession of stolen goods, or for possession of liquor and defendant followed this theory and submitted this issue under Instructions 2, 3, 4 and 5. If the arrest was in fact for stolen goods, and it was instigated by Filipczak, then defendant would be liable for false imprisonment. The evidence shows that immediately upon entering plaintiff's home, Filipczak took charge of plaintiff, told him to "turn around here," "keep your seat," put his hand on him and pushed him back in his chair, preventing plaintiff from going into another room, and later placed plaintiff in front of him and took him into another room, under command. The record is replete with this manner of outrageous restraint of the old man. Under the law, this plainly constitutes false arrest and imprisonment. Humphreys v. Ry., 286 S.W. 738; 25 C. J. 452, 456; Furlong v. Press Assn., 189 S.W. 385; Hanser v. Bieber, 270 Mo. 326; Ahern v. Collins, 39 Mo. 145; Dunlevy v. Wolferman, 106 Mo.App. 46; Tiede v. Fuhr, 264 Mo. 622. (2) It was proper for plaintiff to show that when he was incarcerated in the jail after his arrest, he was cursed and abused, and was denied meals and wholesome food. It is universally held that the condition of the jail in which plaintiff is confined, and his treatment therein, may be shown in an action for false imprisonment, in aggravation of the damages suffered. 25 C. J. 494, 495; 18 R. C. L. 74; Foster v. Railroad, 14 S.W.2d 572; Leyman v. Short, 214 Ky. 272, 283 S.W. 98. (3) Where the criminal proceeding is a sham, and where an arrest is made under legal process, to further private ends, the persons causing such arrest are guilty of false imprisonment. Fellows v. Goodman, 49 Mo. 62. In this case, every circumstance points to the fact that defendants sought an opportunity to search plaintiff's home for goods they thought it might contain, stolen from the railroad. They first went to the officers of Clinton County and requested a warrant to search for stolen goods. This was refused. Then defendants secured the issuance of a search warrant for liquor, based on the most remote hearsay information. The evidence is most convincing, and three juries have found by their verdict, that the defendants planted and placed the liquor found on plaintiff's premises, for the real purpose of entering his home under warrant of state process, and ransacking it for goods. The resulting arrest constitutes a false imprisonment, and defendants are liable therefor. (4) Under the law, to constitute a publication of slander, it is sufficient to show that defamatory words were uttered in the presence of a third person. It is for the jury to say whether they were heard by such third person and understood. Newell on Slander and Libel (4 Ed.) 725; Cameron v. Cameron, 162 Mo.App. 110; Frazier v. Grob, 194 Mo.App. 405, 183 S.W. 1083; United Cigar Stores Co. v. Young, 36 App. D. C. 390; Loranger v. Loranger, 115 Mich. 681; Allen v. Light Co., 233 S.W. 956; Nichols v. Ry., 232 S.W. 275. Mrs. Warren Webster testified that she heard voices in the McCowan home while the men were there, and that they must have been talking loud, considering that "they were shut in the room that way." Mrs. Webster was in her own home, with doors closed, it being about forty feet distant from the McCowan home. In any event, whether plaintiff's wife heard the words was a question for the jury. At the trial plaintiff was deprived of the benefit of his wife's testimony on this point by her death. It was a question for the jury's determination, and that by their verdict they have found that Eleanor McCowan heard the slander uttered by Filipczak. Appellant in its instruction on the slander issue, No. 6, only asked a verdict for defendant in the event the jury found that "Filipczak did not speak the words charged to him." They did not controvert or challenge the sufficiency of the proof as to their being heard, if spoken. That was their trial theory, and they are now bound by it in this court. (a) It is as much a publication of slanderous words to utter them in the presence of plaintiff's wife, as to utter them in the presence of others. Newell, on Slander and Libel (4 Ed.) 230; 36 C. J. 1226; Luick v. Driscoll, 13 Ind.App. 279; 55 Am. St. 224; Kramer v. Perkins, 102 Minn. 455, 113 N.W. 1062, 15 L. R. A. (N. S.) 1141; Schenck v. Schenck, 20 N. J. L. 208; Miller v. Johnson, 79 Ill. 58; Hammond v. Stewart, 72 Ill.App. 512. (b) Appellants contend that, conceding plaintiff's wife to have heard Filipczak's utterances and understood them, yet there would be no publication. This for the reason that such slander would be joint, and the wife would not be a third person for purpose of publication. This is not the law. Marble v....