Hines v. Fireman's Fund Ins. Co.

• Decision Date: 07 November 1921
• Docket Number: No. 14113.,14113.
• Parties: HINES v. FIREMAN'S FUND INS. CO. et al.
• Court: Missouri Court of Appeals

235 S.W. 174

HINES v. FIREMAN'S FUND INS. CO. et al.

No. 14113.

Kansas City Court of Appeals. Missouri.

November 7, 1921.

Rehearing Denied December 15, 1921.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Suit by Lester Hines against the Fireman's Fund Insurance Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Robert A. Brown, of St. Joseph, and Richard L. Douglas, of Lubbock, Tex., for appellants.

John S. Boyer and W. B. Norris, both of St. Joseph, for respondent.

ARNOLD, J.

This is a suit in damages for alleged unlawful arrest and imprisonment.

The Fireman's Fund Insurance Company, a corporation of San Francisco, Cal., on or about March 12, 1919, issued to Charles E. Quinn, of St. Joseph, Mo., an insurance policy covering loss against theft of his automobile in the sum of $315. After the issuance of said policy the car was stolen. Upon proof of loss the insurance company paid the insured the amount of the policy.

The said policy was issued through the Stubbs-McDonald agency, agents of the defendant company at St. Joseph. Mo., and the loss under the policy was paid through that agency, prior to the arrest complained of by plaintiff. It was admitted in evidence that Louis S. Stubbs, one of the defendants herein, was a member of the Stubbs-McDonald agency company, and was authorized to represent that company.

On December 17, 1919, plaintiff (then 25 years of age), who had lived in St. Joseph 9 years, and at the time of his arrest was secretary of the Artcraft Engraving Company of St. Joseph, was arrested for having in his possession a Ford touring car, supposed to have been the property of, and stolen from, Charles E. Quinn, the car covered by the insurance policy referred to above. The plaintiff had purchased his car on October 22, 1917, and had in his possession a bill of sale therefor.

On the morning of the day on which plaintiff was arrested he went to his office and left his car standing outside. About 10 o'clock in the forenoon he walked down to his car and got in it. Officer Reynolds, of the detective force of the city of St. Joseph, got into the car and sat beside the plaintiff. Officer Engle got into the back Seat of the car. Plaintiff was placed under arrest and taken to the police station, booked, and locked in a cell until 1:15 p. m. of that day, when he was discharged. He was not allowed to communicate with his friends, nor permitted to execute bond. Plaintiff's arrest grew out of the following circumstances:

On the morning of the day upon which plaintiff was arrested Charles E. Quinn, who had been the owner of the stolen car, was walking down Felix street in St. Joseph, and saw plaintiff's car standing on the street near his place of business, and from the appearance of the car was of the opinion that it was the one stolen from him, and for which the insurance company had paid him the amount of the policy. His examination of the car was only cursory. He immediately went to his office, telephoned the office of defendant Stubbs, and asked for the number of the stolen car. Stubbs was not present at his office, but, believing the car he had seen on Felix street was the stolen car, Quinn called up the police department and stated that he thought he had found his car and asked that officers be sent to look after it.

After Quinn's telephone message was received at Stubbs' office, and before Stubbs went to see Quinn about the stolen car, Stubbs called up Chief of Police Johnson and asked if Quinn had notified him of anything in relation to the automobile which Quinn had seen and believed to be his. Stubbs was informed by Chief Johnson that he had already sent his men out and they were watching the supposed stolen car. Stubbs then called up Quinn and asked what had been done in regard to the matter, and when told by Quinn that he had notified the police department and that officers were already there watching the car Stubbs said, "That is fine," or words to that effect.

Stubbs then went to Quinn and asked him if he would swear that the car standing in Felix street was his car that had been stolen. Quinn replied that he could not so swear, because he was not positive, and that he did not know the number of the stolen car. Stubbs at the time had the numbers of the stolen car on a piece of paper.

Stubbs then went over to the place where Officer Reynolds was standing guarding the car. Officer Reynolds testified that he was there watching the car to take it to the police station and pick up the party who claimed to own it, when the latter came to get the car. Stubbs then told the officer that it he would take care of the car he (Stubbs) would "fix it up with him and give him a Christmas present." Stubbs then started to make an examination for the purpose of comparing engine or factory numbers of the stolen car with those of the suspected car when Reynolds advised that he had better not do it, and that he had better not be seen there, as his presence might frighten away the person who had left the car. Thereupon Stubbs left and returned to his place of business, without having made any further suggestions. The arrest and incarceration of plaintiff followed, as above detailed.

Plaintiff afterwards filed this suit, in which the Fireman's Fund Insurance Company, Louis S. Stubbs, Charles Quinn, James C. Sullivan, and Joseph W. Reynolds were named as parties defendant. The petition alleges that plaintiff's arrest and imprisonment were without warrant or authority of law, and that the same was caused and done by all of the defendants without any right or authority so to do, and against the will of plaintiff, and that by and through and because of the said action of said defendants the plaintiff herein was unlawfully, wrongfully, and maliciously required to pass through the city of St. Joseph in the custody of the police officers above named, under arrest, to the police station of said city, and was there imprisoned in the common jail of said city for a long period of time, deprived and restrained of his liberty.

Plaintiff prayed judgment for $5,000 actual and compensatory and for $5,000 punitive damages.

The separate answers of defendant insurance company and Louis S. Stubbs were general denials, the former admitting its corporate existence. The case was tried to a jury and resulted in the following verdict:

"We, the jury in the above-entitled cause, find for plaintiff and against the defendant Fireman's Fund Insurance Company, a corporation, and their agent, Louis S. Stubbs, and assess plaintiff's actual damages at the sum of $800."

Motion for new trial was duly filed on behalf of said defendants, argued by counsel, and by the court overruled. The said defendants appealed.

Defendants' first contention is that the court erred in refusing to sustain demurrers at the close of plaintiff's case and at the close of the evidence. The argument in support of this contention is that there is no evidence in the record which tended to prove that the defendants, or either of them, counseled, caused, or in any way contributed to cause the arrest of plaintiff; that all the evidence was to the effect that they had nothing whatever to do with calling the police officers into the case; that they never requested nor suggested the arrest of plaintiff or any one else, and that they were not present when the arrest was made; that they did not know the plaintiff and had no knowledge of his arrest or anything pertaining thereto until they were summoned as defendants in this case; and that there was no evidence of any character to sustain the verdict.

This contention is met by plaintiff in his argument that liability for false imprisonment is not confined to the party actually restraining and confining the plaintiff, but extends to all persons instigating, encouraging, aiding, and abetting the unlawful seizure, and even those not participating therein, provided such party aided, assisted, and encouraged the false imprisonment.

The testimony in the case at bar tends to show that plaintiff was falsely imprisoned. This is not denied by defendants.

There would seem to be no contention between the parties that declarations above are not based on good law. The difference between the parties is: Does the testimony in this case apply?

After a careful examination of the record, we are unable to concur...