Hoagland v. Forest Park Highlands Amusement Co.

• Decision Date: 02 December 1902
• Citation: 70 S.W. 878,170 Mo. 335
• Parties: HOAGLAND v. FOREST PARK HIGHLANDS AMUSEMENT CO. et al.
• Court: Missouri Supreme Court

70 S.W. 878

170 Mo. 335

HOAGLAND v. FOREST PARK HIGHLANDS AMUSEMENT CO. et al.

Supreme Court of Missouri, Division No. 2.

December 2, 1902.

LOST GOODS — RIGHTS OF FINDER — FALSE ARREST — ASSAULT — PLEADING — GENERAL DENIAL — INSTRUCTIONS — EVIDENCE — VERDICT — PUNITIVE DAMAGES — COMPENSATORY DAMAGES — NECESSITY.

1. Plaintiff found a pocketbook in a place of amusement, when he started for the ticket office, to leave it there. The office was closed, and he was accosted by three of defendant's employés, who each asserted himself to be the proper person with whom the pocketbook should be left. Plaintiff refused to deliver the pocketbook to any one except a uniformed ticket seller or police officer, when defendant's employés assaulted and arrested him, and took him to a policeman, who took the pocketbook, but refused to continue plaintiff's arrest, which defendant's servants demanded. Held, that an instruction, in an action for unlawful arrest and assault, that the amusement company had a right to exercise reasonable care to protect the property of the true owner, inadvertently mislaid or lost upon its premises, and that if defendant and its manager only endeavored to obtain from plaintiff valuables so found, to keep them for the true owner, their request was not unreasonable, and defendant had the right to eject plaintiff on his refusal to comply with their request, using such force as was necessary, was erroneous, where the property had been lost, and plaintiff, therefore, as the finder, being entitled to its possession as against every one except the true owner.

2. The instruction was also erroneous as not supported by the evidence, since the assault was not committed for the purpose of ejecting plaintiff from the premises, but in an unlawful arrest.

3. Where plaintiff sued for an unlawful arrest and assault committed by defendant's employés for his refusal to deliver a pocketbook he had found on the ground in defendant's place of amusement, and defendant pleaded a general denial, such plea was insufficient to present a defense that it was the defendant's duty to protect lost property, and that, if plaintiff unreasonably refused the request of defendant's employés to deliver the pocket book, defendant was entitled to eject plaintiff from the premises, using such force as was necessary.

4. Where plaintiff was assaulted and arrested by reason of his refusal to deliver a pocketbook found on defendant's premises to defendant's employés, evidence of defendant's system in making a record of lost articles, and of its advertising the finding of the pocketbook in question, was inadmissible in an action for such assault.

5. In an action for assault and unlawful arrest, a verdict assessing plaintiff one cent punitive damages, and finding no compensatory damages, was erroneous, since actual damages must be found, as the predicate for the recovery of exemplary damages.

6. A jury found that defendant arrested plaintiff, and cursed and abused him, with no lawful excuse whatever. Held, that he was entitled to have damages, to some extent, assessed in his favor.

Appeal from St. Louis circuit court; Wm. Zachritz, Judge.

Action by George A. Hoagland against the Forest Park Highlands Amusement Company and another. From a judgment awarding plaintiff one cent punitive damages, he appeals. Reversed.

Charles & Lackey, for appellant. Rassieur & Rassieur, for respondents.

BURGESS, J.

This is an action for $5,000 damages alleged to have been sustained by plaintiff by reason of an unlawful arrest and assault and battery by the employés of the defendants of and upon him. On the evening of June 24, 1898, plaintiff was at Forest Park Highlands, a place of amusement and refreshment in the city of St. Louis, operated by defendant company, all parts of which are open and free to the public, except the open-air theater, which is fenced off from the rest. He attended the performance at the theater, and, after its close, sat down at one of the tables, which were scattered about the grounds, when he found a pocketbook lying on the ground. He at once started with it to the ticket office, for the purpose of leaving it there. The window was closed, but, in his efforts to attract the attention of those within, he was observed by the head waiter, who asked what he wanted. When told by plaintiff that he had found a pocketbook, this man claimed that he was the proper party to whom to deliver it. Another employé then approached, and he likewise claimed to be the proper custodian. A private watchman then came up and informed plaintiff that he was the right man to take it; and finally defendant Scherf was called, and, after telling plaintiff that he was the manager, demanded that plaintiff give it to him. Plaintiff refused to do so, telling each of the men, in turn, that he did not know him, and that he would deliver the pocketbook only to the ticket office or to a uniformed police officer. He had not shown it to any one, and, except for his statement, they would not have known he had it. His refusal angered the men, — particularly Scherf. They became violent, abusive, and profane in their language to him, and thereby attracted a large crowd. He handed his card to each one of them, but they all refused to take it. After detaining him some time, and refusing all the while to comply with his request to get the ticket office open or bring a police officer, Scherf ordered the others to arrest him. This they did. They took plaintiff from the ticket office, in the southern part of the grounds, to the street-car entrance, on the north, — a distance estimated by different witnesses at from 200 feet to 200 yards. Here they found a policeman, who took the pocketbook, but refused to continue the arrest, although Scherf demanded it. Plaintiff's clothing was disarranged, and he was so roughly handled that that night he found on his arms marks made by the two watchmen. They cursed him, and were violent and abusive. There was a large crowd, composed of people who were sitting around at the tables, and people who, like plaintiff, had attended the theater, and were starting home. The jury gave plaintiff no compensatory damages, but gave him one cent punitive damages! Having moved unsuccessfully for a new trial, plaintiff appeals to this court.

The only points urged upon this appeal for a reversal of the judgment of the trial court are error in giving instruction No. 5 on the part of defendants, and that the verdict was against the evidence, and must have been the result of bias or prejudice.

The instruction complained of reads as follows: "The court instructs the jury that the defendant Forest Park Highlands Amusement Company not only had the right, but was in duty bound, to exercise reasonable care to protect, for the true owner, all valuables inadvertently mislaid or lost upon its premises; and if the jury find that the defendant company and Henry Scherf, its manager, only endeavored to obtain from the plaintiff valuables so found for the purpose of keeping the same safe for the true owner, then their request was not unreasonable, and the defendants had the lawful right to eject the plaintiff from said premises upon his refusal to comply with their request, and in doing so the defendants could use such force as was necessary."

The argument is that the statement in this instruction that the request of the defendants for possession of the pocketbook found by plaintiff was not unreasonable is incorrect, because the defendants had no right to its possession. All of the authorities hold that the finder of a lost chattel is entitled to its possession as against all other persons, except the true owner. The finder has a special...