Howell v. Viener

• Decision Date: 01 November 1937
• Docket Number: 32834
• Citation: 179 Miss. 872,176 So. 731
• Court: Mississippi Supreme Court
• Parties: HOWELL v. VIENER

176 So. 731

179 Miss. 872

HOWELL v. VIENER

No. 32834

Supreme Court of Mississippi

November 1, 1937

Division B

Suggestion Of Error Overruled December 13, 1937.

APPEAL from the circuit court of Adams county HON. R. E. BENNETT Judge.

Action by Luther Howell against Leon Viener. Judgment on a directed verdict for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

W. A. Geisenberger, of Natchez, for appellant.

This court, in passing upon the judgment of the lower court rendered upon a peremptory instruction granted the appellee, must accept as true all evidence supporting the claim of the appellant and all favorable inferences therefrom.

G. & S. I. R. Co. v. Prine, 118 Miss. 90, 79 So. 62; N. O. & N. E. R. Co. v. Penton, 135 Miss. 571, 100 So. 521; N. O. & N. E. R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; Lowe v. Mobile & Ohio R. Co., 149 Miss. 889, 116 So. 601; Columbian Mutual Life Ins. Co. v. Gunn, 173 Miss. 897, 163 So. 454; Masonite Corp. v. Dennis, 175 Miss. 855, 168 So. 613.

The theory of appellee as defendant in the court below seems to have been that, because he testified that he acted without malice in directing the arrest of the appellant and because he considered that he had grounds for causing the arrest, he thereby absolved himself from all liability to the appellant therefor; and the lower court subscribed to this theory. It has long been held, however, that the good faith of a person unlawfully causing the arrest of an innocent person is no defense to an action for damages by the latter against him but goes only to diminish damages, and that the question of his probable cause to believe the arrested person to have been guilty of the crime for which he caused his arrest, is one for the jury, and in the absence of any negligence or wrongful conduct on the part of the accused, does not justify the arrest but serves likewise only to mitigate damages, and the burden of proof in each instance is on the defendant.

Bacon v. Bacon, 76 Miss. 458; Vice v. Holley, 88 Miss. 572, 41 So. 7; Harris v. Sims, 155 Miss. 207, 124 So. 325; Carlisle v. City of Laurel, 156 Miss. 410, 124 So. 786; Meints v. Huntington, 276 F. 245, 19 A. L. R. 664; 25 C. J., page 476, sec. 32, and page 561, sec. 176.

The law is also settled that an individual who directs or requests a peace officer to make an arrest which turns out to be illegal will be liable in the same manner as if he had made the arrest himself, regardless of his motives.

25 C. J. 469, sec. 34; Section 1227, Code of 1930.

The proof of good faith of the appellee did not bar the action against him but should have been submitted to the jury in mitigation of damages.

Bacon v. Bacon, 76 Miss. 458; Vice v. Holley, 88 Miss. 572, 41 So. 7; Daniels v. Milstead, 128 So. 447; 25 C. J. 561, sec. 176.

An individual directing the arrest by a peace officer is liable to the same extent as though he made the arrest himself.

25 C. J., secs. 37 and 71.

The burden of proof rested on the appellee to show justification and that burden was not met but the court should have permitted the jury to pass upon it.

Harris v. Sims, 155 Miss. 208, 124 So. 325; Carlisle v. City of Laurel, 156 Miss. 410, 124 So. 786.

The facts or circumstances constituting the reasonable or probable cause for suspicion justifying an arrest without a warrant must, in the case of a private person, be within his personal knowledge. He may not act upon the information or suspicion of others, the rule as to private persons being different in this respect from the rule in regard to peace officers, unless otherwise provided by statute. But with this qualification it seems that the sufficiency of facts or circumstances if personally known to create a reasonable suspicion of guilt is the same as in the case of an officer.

5 C. J., 418, sec. 47; Restatement of the Law, Torts, sec. 119 (i).

It is apparent that the appellee's defense of justification must crumble because there is no proof of the actual commission of a felony, and without this proof he could not lawfully make an arrest, nor could he, without incurring the consequent liability therefor, direct the arrest by a peace officer.

25 C. J. 469, sec. 34; Palmer v. Maine Central R. Co., 92 Me. 399; Eichengreen v. Louisville Nashville R. Co., 31 L. R. A. 702.

The lower court should have submitted the question of probable cause to the jury.

Director-General of Railroads v. Kastenbaun, 263 U.S. 52, 68 L.Ed. 146, 44 S.Ct. 52; Harris v. Sims, 155 Miss. 208, 124 So. 325.

Engle & Laub, of Natchez, for appellee.

When the appellee approached the police officer he had reasonable grounds to believe that a felony had been committed and since a felony had been committed, under our statute, an arrest either by him or by a police officer without warrant was authorized.

Sections 947, 957, 1224 and 1227, Code of 1930.

Under the statute where a person believes that a felony has been committed the right to arrest or at least make a complaint to the proper law officer shields the person making the arrest or the complaint from damages under a civil suit for false imprisonment.

That there were reasonable grounds of belief in this case was without peradventure of a doubt and was established by all of the testimony in the case.

King v. Weaver Pants Corp., 157 Miss. 77, 127 So. 718; Bushardt v. United Inv. Co., 121 S.Ct. 324, 113 S.E. 637, 35 A. L. R. 637.

Such were the facts in the instant case here that but one legitimate inference could be drawn by the trial judge from the evidence and, therefore, became one of law for the court. That inference was that a felony had been attempted or committed and that the appellee had reason to believe that such was the case, and that any reasonable man had reason to so believe and that, therefore the arrest could be made by the appellee as a private citizen or he was fully protected by the statute in event that complaint was made to an officer that a felony had been committed and an arrest upon that complaint was made.

The trial court was eminently correct in granting the peremptory instruction asked for in this case.

Central Ry. Co. v. Brewer, 27 L. R. A. 63; Gambill v. Cannon, 51 So. 755, 165 Ala. 570.

The appellee had the right to make the complaint to the police officer that the negro man, Gant, had attempted to pass a bill which he, appellee, had reasonable ground to believe to be counterfeit. Thereupon it became the duty of the police officer to investigate as a felony had been committed and to make an arrest upon the information received with or without warrant.

When, however, the appellant declared that he himself had had the bill and then had it in his possession and that it was he who had given it to the negro man for the purpose of having it passed in the purchase of a pair of shoes which he had sent the negro man to purchase, the appellant made himself an accessory before the fact and a principal in the transaction. Having done this and having brought himself into the situation as being one of the acting parties in the commission of a felony, police officer Ramsey then acted upon his own initiative as is shown by the record and as pointed out in a discussion of the facts in this case.

The action of the trial court in granting the peremptory instruction is fully substantiated by the rule of law as applicable to the facts in the instant case under the rule as laid down in American Railway Express Co. v. Summers, 94 So. 737, 208 Ala. 531.

Lancaster v. Pitts, 122 So. 531, 154 Miss. 406; 11 R. C. L. 808; 25 C. J. 448, note 49 (d).

In the instant case there is not one scintilla of evidence or suspicion that the appellee was enforcing any private rights or doing other than acting as a good citizen to enforce the general public criminal laws.

25 C. J. 469, par. 34 (4); Van v. Pacific Coast Co., 120 F. 699; Lemon v. King, 95 Kan. 524, 148 P. 750, L. R. A. 1915E, 882.

False imprisonment is not the proper action under the facts in this case.

Bushardt v. United Inv. Co., 121 S.C. 324, 113 S.E. 637, 35 A. L. R. 637; Smith v. Clark, 106 P. 653, 26 L. R. A. (N. S.) 953; Langen v. Borkowski, 206 N.W. 181, 43 A. L. R. 622; 11 R. C. L. 808, note 5.

Argued orally by W. A. Geisenberger, for appellant, and by S. B. Laub, for appellee.

OPINION

Anderson, J.

Appellant brought this action in the circuit court of Adams county against appellee to recover damages for an alleged false arrest of appellant, claimed by him to have been procured by appellee. There was a trial and directed verdict and judgment in favor of appellee, from which appellant prosecutes this appeal.

We are of the opinion that the court erred; that the question of liability was one for the jury. In reaching that conclusion we accept as true all the material evidence and reasonable inferences therefrom supporting appellant's case. In doing so, we follow the rule laid down in numerous decisions of this court, among which are: Gulf & S. I. R. R. Co. v. Prine, 118 Miss. 90, 79 So. 62; New...