Helming v. Adams

• Decision Date: 01 April 1974
• Docket Number: No. KCD,KCD
• Citation: 509 S.W.2d 159
• Parties: Regina HELMING, Respondent, v. John ADAMS, Appellant. 26335.
• Court: Missouri Court of Appeals

Page 159

509 S.W.2d 159

Regina HELMING, Respondent, v. John ADAMS, Appellant.

No. KCD 26335.

Missouri Court of Appeals, Kansas City District.

April 1, 1974.

Motion for Rehearing and/or Transfer Denied May 6, 1974.

Woolsey & Yarger, Versaille, for appellant.

Carson, Inglish, Monaco & Coil, Michael P. Riley, Jefferson City, for respondent.

Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.

PER CURIAM:

This is an appeal from a judgment entered pursuant to a jury verdict in favor of plaintiff-respondent awarding her actual damages of $213.00 and punitive damages of $2,500.00, in an action for false imprisonment against defendant-appellant. The parties will hereinafter be designated, respectively, plaintiff and defendant.

Defendant vies on appeal that the judgment should be reversed and the case remanded for a new trial for five reasons:

I. The trial court erred in refusing to give either Instruction D--2 or D--3, requested by defendant, thus depriving defendant of the 'defense of probable cause although evidence of probable cause and justification had been pleaded and proven.'

II. The trial court erred in giving Instruction No. 5, a punitive damage instruction, absent evidence to support it, and absent the incorporation of or an accompanying definition of malice.

III. The trial court erred in refusing to admit defendant's Exhibits 1, 2, 3 and 4, photographs of the sence of an alleged assault pertinent to the issues drawn in the case.

IV. The trial court erred in refusing to give Instruction D--1, a withdrawal instruction requested by defendant regarding damage to plaintiff's nervous system, since all the evidence disclosed that any such damage resulted from causes other than acts of defendant.

V. The verdict was excessive and resulted from passion, prejudice or bias on the part of the jury.

The following facts are set forth, since they are indispensable to the proper resolve of defendant's assignments of error.

On June 27, 1971, between 8:00 and 8:30 P.M., defendant, a district supervisor, and Richard Schroeder, an agent, for the Missouri Conservation Commission, were seated in Schroeder's state owned automobile, which was parked on a dirt side road in Cole County. More particularly, the automobile was parked in a general area described as 'down in the Claysville Road area, down the upper Cole Junction bottoms'. This area was in the near vicinity of the Church Prison Farm, a unit of the Missouri Department of Corrections. At that time defendant and Schroeder observed an automobile containing three people drive past them, headed north, on the Claysville Road, which ran perpendicular to the dirt side road they were parkded on. This automobile stopped and parked some forty to sixty feet from the dirt side road. Two males emerged from the automobile after it stopped, Calvin Huckabee, the driver, and Staley Helming, one of the two passengers. Plaintiff, the other passenger, remained inside the automobile at all times. Defendant and Schroeder were on 'routine patrol' at the time in question.

When Huckabee got out of the car he was carrying a .22 caliber rifle. He walked over to a nearby mulberry tree in hopes of finding some squirrels to shoot. No squirrels appeared and no shots were ever fired by Huckckabee. When Stanley Helming got out of the car, he proceeded down the road on foot, around a bend, for the purpose of viewing the scene of a recent fatal train accident.

During the interim, defendant and Schroeder got out of their automobile, and defendant quietly followed and observed Stanley Helming from the wooded area that paralleled the Claysville Road, while Schroeder remained at the car and kept Huckabee under surveillance. After some ten or fifteen minutes, Stanley Helming and Huckabee returned to and re-entered their parked car, which plaintiff was still sitting in. Huckabee, as driver, with plaintiff sitting in the front seat, right hand side, and Stanley Helming seated in the rear, started the car up and drove forward a short distance down the road and then proceeded to turn the car around to proceed home. According to the plaintiff's evidence it was 'haze dark' at the time. On the other hand, according to defendant's evidence, it was still light out.

As the car driven by Huckabee started up the road, after turning around, the occupants of the car 'heard a noise in the wooded area like somebody was walking.' Huckebee asked plaintiff if she heard the noise and she answered, 'We are awfully close to the prison farm, it could be an inmate.' Plaintiff also said, 'We better leave.' As the car proceeded on up the road, plaintiff for the first time observed agent Schroeder. She did not know who he was. According to plaintiff's evidence neither she, nor any of the other occupants of the car, observed any badge or name tag on Schroeder indicating that he was an agent of the Missouri Conservation Commission. When plaintiff saw Schroeder she said, 'There is one now, looks like a convict all right' and she thought he was a convict. Schroeder was walking toward the oncoming car on the shoulder (on the car's left hand side of the road) at the time. Before the oncoming car driven by Huckabee reached Schroeder, Schroeder verbally and manually ordered the car to stop for the purpose of checking whether or not Huckabee had a 'hunting permit.' Huckabee accelerated the car and speeded on past Schroeder. Defendant's evidence was that in doing so the car swerved toward and struck Schroeder. Defendant's evidence further disclosed that thereafter the car 'continued to come back and forth across the road at a high rate of speed.' Plaintiff's evidence was that the car merely fishtailed a bit when it was accelerated and at no time ever struck Schroeder. In any event, Schroeder was not hurt or injured.

Immediately after the car passed Schroeder he drew a Model 19, .357 Magnum, Smith and Wesson revolver issued to him by the Missouri Conservation Commission, and fired four shots into the rear of the departing car. One of the shots hit the gas tank of the departing car and another shot hit the back window and emerged through the windshield near the steering wheel. Fortunately, none of the shots struck any of the occupants of the departing car although glass from the windshield flew all over than and Huckabee and Stanley Helming were cut by the flying glass. The departing car did not stop when the shots were fired. Whereupon, defendant and Schroeder got into their automobile, turned on a red light the car was equipped with, and purused the departing car. According to plaintiff's evidence, she looked around after the shot was fired and observed a car behind them with its red light flashing and said, 'There is a red light. You had better stop.' Huckabee stopped the car.

The car occupied by Schroeder and defendant pulled up behind Huckabee's car and stopped. According to defendant's evidence Schroeder drew his .357 Magnum revolver and with gun in hand approached the left hand or driver's side of the Huckabee car, while defendant, with his holster unfastened and his hand on the gun still in the holster, approached the right hand side of the car. At gun point, Schroeder ordered Huckabee out of the car and 'spread eagled' him on the side of the car and searched to see if he was carrying a weapon. Defendant ordered plaintiff and Stanley Helming out of the right hand side of the car. Plaintiff's evidence was that defendant, as well as Schroeder, had his .357 Magnum revolver drawn and in his hand, and as defendant approached the car and ordered plaintiff and Stanley Helming out, defendant had his .357 Magnum revolver in his hand and pointed toward them.

According to agent Schroeder, who was called as a witness by defendant, Huckabee, the driver, when he was ordered out of the car, said to Schroeder, 'I am sorry, I know I should not have done what I did, but I thought you were a convict.' Schroeder proceeded to check Huckabee's identification. Contemporaneously, defendant ordered plaintiff and Stanley Helming out of the car and proceeded to check their identification at which time plaintiff, without protest of any kind, submitted her driver's license and fishing license to defendant for inspection.

Agent Schroeder, during the course of cross-examination, was asked the following questions and gave the following answers:

'Q. At the time you were down there, sir, you had not seen Regina Helming commit any violation whatsoever, had you?

A. No, I hadn't seen her.'

'Q. . . . Now, you were aware at the time that you fired at the automobile that this woman was there and she had done absolutely nothing. Isn't that correct?

A. As far as I can remember we didn't see her do anything.'

'Q. I asked you: did she violate the rules and regulations of the commission?

A. No, sir.'

'Q. That wasn't Regina Helming's automobile?

A. She was in it.

Q. She was in it?

A. Yes.

Q. And she didn't do any hunting: right?

A. Not that we saw.

Q. And you saw her fishing license?

A. Yes, sir.

Q. What else did you have to investigate Regina Helming for?

A. She was in this area with a car that apparently committed the act against me and we wanted to know, she might have been there against her will with these two men. So we had to hold them until we run a check on them through the Highway Patrol and these other agencies.

Q. Mr. Schroeder, you are trying to tell me you were protecting Regina Helming by taking her to jail because these people might have her out there against her will?

'A. We had no idea at the time who they were, what they were doing or why they were out there, why they would act like that.

Q. Is that why you put her under arrest, you wanted to protect her against her will?

A. We wanted to find out who she was and find out what was going on.'

'Q. --because you didn't have anything to investigate her for? She handn't violated any game, laws, had she?

A. Not that I knew at that time.' Defendant himself testified:

'Q. Did they commit any...