Kirk v. Garrett

• Citation: 35 A. 1089,84 Md. 383
• Parties: KIRK ET AL. v. GARRETT.
• Decision Date: 03 December 1896
• Court: Court of Appeals of Maryland

35 A. 1089

84 Md. 383

KIRK ET AL. v. GARRETT.

Court of Appeals of Maryland

December 3, 1896

Appeal from superior court of Baltimore city.

Action by Wilmer H. Garrett, an infant, by his father and next friend, Samuel H. Garrett, against Samuel Kirk & Son and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

Argued before McSHERRY, C.J., and BRYAN, BOYD, FOWLER, and BRISCOE JJ.

W Pinkney Whyte, for appellants.

Thomas C. Weeks and D. Eldridge Monroe, for appellee.

McSHERRY C.J.

This is an action of trespass for assault and false imprisonment. There are five bills of exception in the record. Two relate to rulings of the superior court on prayers for instructions to the jury, and three to the admissibility of proffered, but rejected, evidence. About some of the facts there is dispute and conflict. To these reference will be made as we proceed. They have relation to the ruling in the first and to some of the rulings in the fifth bill of exceptions. The uncontroverted facts that are material to an intelligent preservation of the questions involved in all the rulings complained of may be concisely summarized from the record without quoting extensively or literally from its pages.

Two of the defendants, Henry C. Kirk and Henry C. Kirk, Jr. constitute the firm of Samuel Kirk & Son, manufacturers and dealers in silverware. The equitable plaintiff, a youth of some 17 or 18 years of age, was one of their employés, and his duty was to polish the finished work. The other two defendants, Miller and Hardesty, were members of a detective agency; one of them, Hardesty, being a constable. The Messrs. Kirk, discovering that they were being subjected to repeated losses by larcenies, believed to have been committed by persons in their service, the junior member of the firm engaged Miller and Hardesty to investigate, and to ascertain, if possible, the culprits. On the last day of July, 1894, the equitable plaintiff took from the shop of Kirk & Son a half dozen silver tablespoons, concealed in his pocket, and on the corner of St. Paul and Fayette streets handed them to a co-employé, to be engraved; the engraver having previously refused to take them from the plaintiff while in the defendant's shop. The detectives saw the plaintiff leave the shop with something hidden in the inside pocket of his coat, and they also saw him give the package to the engraver on the street corner. The next day the plaintiff, on leaving the shop, again took with him six tablespoons, which he carried, as before, in the inside pocket of his coat. As he proceeded up the street on his bicycle, he heard a whistle, and on looking around saw Hardesty, who motioned to him to stop. He did stop, and Hardesty went up to him, showed his badge as a constable, and requested the equitable plaintiff to accompany him to his (Hardesty's) office. Thereupon Miller joined them, and the three walked to the office of Miller and Hardesty, not far distant. When they reached there, and entered with the plaintiff, they locked the door, and then asked him whether he had any spoons in his possession. He replied that he had, and produced a half dozen tablespoons from his inside pocket, whereupon the detectives charged him with having stolen them, which charge he denied, and claimed that, though the spoons were stamped with the name of Samuel Kirk & Son, and were Kirk's silver, he had exchanged for them, without the knowledge of his employers, an equal amount in weight of old silver. Mr. Kirk, Jr., was then sent for, and upon his arrival made inquiries as to whether other employés had been guilty of stealing, and the plaintiff, according to one of his versions of the interview, informed Mr. Kirk that five others had exchanged old silver for manufactured silver, just as the plaintiff said he had done; but, according to the version of the interview given by Mr. Kirk and by Mr. Miller and Mr. Hardesty, the plaintiff admitted that five other employés were guilty of stealing articles from Kirk & Son's shop, and he gave the names of the parties, and described the articles, and signed a paper setting forth this information. He was then taken to Brawner's Hotel, as he says, without his consent, and against his will, but, as the other three declare, at his own instance and request. He was told by the detectives immediately after his arrest, so they and Mr. Kirk assert, that they would be obliged to take him to the station house, to be dealt with by the police department; but he appealed to Mr. Kirk to prevent this being done, as his arrest, if thus given publicity, would become known to his invalid mother, and the shock would probably cause her death. In consequence of this appeal, in view of his youth, and upon his promise to appear before the grand jury, and there testify against his co- employés, Mr. Kirk, Jr., consented that he should not be taken to the station house; and the plaintiff himself suggested that he should be allowed to go with the detectives to an hotel, and be there kept until he could give his testimony before the grand jury. He was taken to Brawner's Hotel, and remained there all night. The next day he went back to Miller and Hardesty's office with them, and stayed there the entire day; and the night of that day he spent, still in the company of the detectives, at the Imperial Hotel. The next day he went before the grand jury, and testified, though, as he now says, he did not then inform the grand jury that the other men, named by him to Mr. Kirk, had been stealing from the firm. After appearing as a witness before the grand jury, he was permitted to return to his home. No accusation was lodged against him, and he was reinstated by the firm in his position as an employé, where he remained until within a day or two before this suit was instituted on the following 21st day of September. Henry C. Kirk, Sr., had no knowledge of the arrest of the equitable plaintiff when it was made, and according to the undisputed evidence had nothing to do with it; nor does he appear to have known what was done with the plaintiff when he was taken into custody. The spoons found in the possession of the equitable plaintiff when he was arrested were beyond doubt the property of Samuel Kirk & Son. They had been made for them out of their own silver, by their own workmen, bore their trade-mark, and the cost of their manufacture had been paid by the firm. That an employé, without their knowledge or consent, could surreptitiously take and carry away this property upon leaving with a fellow workman in its place and stead raw material, equal in weight, but not the equivalent in value, of the manufactured article, and yet be innocent of the crime of larceny, is a doctrine which finds no countenance or sanction in the law. When, therefore, the equitable plaintiff took and carried away from the shop of Kirk & Son, on the 31st of July, one half dozen tablespoons, and again on the day following an additional half dozen, he was incontestibly guilty of larceny. If so guilty, was his arrest or detention lawful or illegal?

The illegality of the arrest and the unlawfulness of the detention are indispensable elements in this form of action and if, therefore, the arrest were lawful, and the detention were reasonable, there was, and could be in the very nature of the case, no false arrest or false imprisonment. From the earliest dawn of the common law, a constable could arrest without warrant when he had reasonable grounds to suspect that a felony had been committed; and he was authorized to detain the suspected party such a reasonable length of time as would enable him to carry the accused before a magistrate. And this is still the law of the land. It is wholly immaterial whether the suspicion arises out of information imparted to the constable by some one else, or whether it is founded on the officer's own knowledge. In either event, what amounts to a sufficient ground of suspicion to justify an arrest by a constable without a warrant is for the court, and not for the jury, to determine. In Pollock on Torts this doctrine is thus stated: "What is reasonable cause of suspicion to justify arrest is--paradoxical as the statement may look--neither a question of law nor of fact. Not of fact, because it is for the judge, and not for the jury [citing Hailes v. Marks, 7 Hurl. & N. 56]; not of law, because no definite rule can be laid down for the exercise of the judge's judgment [citing Lister v. Perryman, L. R. 4 H. L. 521, per Lord Chelmsford and Lord Colonsay]. It is a matter of judicial discretion, such as is familiar enough in the classes of cases which are disposed of by a judge sitting alone; but this sort of discretion does not find a natural place in a system which assigns the decision of facts to the jury, and the determination of the law to the judge. The anomalous character of the rule has been more than once pointed out and regretted by the highest judicial authority." Lord Campbell, in Broughton v. Jackson, 18 Q. B. 378; Lord Hatherly, Lord Westbury, and Lord Colonsay, in Lister v. Perryman, supra. "But," continues the author, "it it too well settled to be disturbed unless by legislation." Pol. Torts (Ed. 1887) 192; Cohen v. Huskisson, 2 Mees. & W. 477; Warner v. Riddiford, 4 C. B. (N. S.) 180; Mure v. Kaye, 4 Taunt. 34; 2 Add. Torts, § 841. It may be broadly stated that what amounts to probable cause in cases of malicious prosecutions will amount to such reasonable grounds for suspicion of felony as will justify and require an officer to make an arrest. Reg. v. Dadson, Temp. & M. 385; 2 Am. & Eng. Enc. Law (2d Ed.) 871. Now, do the facts show that Hardesty, the constable, had reasonable grounds to suspect that a felony had been committed, and that the equitable plaintiff was the guilty par...