Kominsky v. Durand, 8199.

Decision Date23 April 1940
Docket NumberNo. 8199.,8199.
PartiesKOMINSKY v. DURAND.
CourtRhode Island Supreme Court

Exceptions from Superior Court, Providence and Bristol Counties; Walter Curry, Judge.

Action of trespass for false imprisonment by Morris Kominsky against Ernest Durand. To review a ruling of a justice of the superior court sustaining a demurrer and rulings of another justice who presided at the trial which resulted in a verdict for the defendant, plaintiff brings exceptions.

Judgment in accordance with opinion.

Alfred H. Lake, of Providence, for plaintiff.

Sidney Silverstein and John R. Higgins, both of Woonsocket, for defendant.

CONDON, Justice.

This action of trespass for false imprisonment is here on plaintiff's exception to a ruling of a justice of the superior court sustaining defendant's demurrer to plaintiff's third replication to defendant's special plea in justification, and also on his exceptions to certain rulings of another justice of that court who presided at the trial which resulted in a verdict for the defendant.

The plaintiff alleges in his declaration that on June 24, 1938, in the city of Woonsocket, he was seized and laid hold of with force and violence by a police officer of that city, acting under the direction of the defendant, and compelled to go to the police station where he was detained and imprisoned without any reasonable or probable cause for one and one half hours. The defendant pleaded the general issue, and also a special plea in justification as follows :

"And for a further plea in his behalf, the defendant says the plaintiff ought not to have his aforesaid action against him, the defendant, because he says that before the said time when, etc., to wit, on, etc., the 24th day of June, A. D. 1938, in the City of Woonsocket, County of Providence and State of Rhode Island, the said defendant, while engaged upon his official duties as a police officer, received a report from one Ernest Lamontagne, a reputable business man of said City of Woonsocket, that a 1935 Plymouth Sedan bearing Rhode Island registration plates K-2878 had been driven from Rathbun Street, in said City of Woonsocket, without the consent of the owner of said motor vehicle; that the said defendant, relying upon the said report and acting in good faith, believed the said report of the said Ernest Lamontagne to be true, by reason of which premises, the defendant at the said time, when, etc., had good and reasonable cause and ground to believe and did believe that a felony had been committed; that the defendant thereupon notified other officers of the said City of Woonsocket to investigate the alleged felony, and, within a short time, another officer appeared at the Police Station with the plaintiff who was reported by the said officer to be the driver of car number K-2878, by means whereof the defendant had reasonable and probable cause to suspect and did suspect that the plaintiff had committed the said felony; that the said defendant explained the situation to the said plaintiff who then produced his name, address, license and registration number; that the said defendant promptly and diligently investigated the ownership of the said automobile and the identification of the said plaintiff, and, upon learning that the plaintiff was the owner of the said automobile, told him of the result of the investigation; that the plaintiff was at the Police Station about one and one-half hours, which time was used in making the investigation and was a reasonable time; all of which are the supposed trespasses in the said plaintiff's declaration mentioned, and of this the defendant is ready to verify, wherefore he prays judgment."

Plaintiff's third replication to this special plea alleged that under the facts set forth in said special plea it was the duty of the defendant, under the law, to take him, the said plaintiff, before a magistrate or other proper judicial officer, but that he, the defendant, wrongfully discharged plaintiff from custody and thereby became a trespasser ab initio. Defendant's demurrer to this replication was sustained on the ground that the law did not charge the defendant with the duty as alleged by the plaintiff. In support of this ruling, the justice of the superior court relied expressly on the last sentence in sec. 75, chapter 407, General Laws 1923 (now § 68, chap. 625, G.L.1938). Section 75 reads as follows:

"Every officer authorized to make an arrest for any criminal offense, may arrest without complaint and warrant any person who commits any criminal offense in his jurisdiction, when such officer has view of the same, or when the offender is taken or apprehended in the act by any person. Such officer may also arrest without complaint and warrant any person for whom a warrant of arrest has been issued, although such warrant at the time of such arrest may not be in the possession of such officer. Any person so arrested may be detained a reasonable time not exceeding 24 hours, for the purpose of making an investigation concerning such person, but no person so arrested shall be detained longer than 24 hours, without complaint being made against him before some proper court of justice. If the officer making the arrest shall, at any time within the said 24 hours, satisfy himself that there is no ground for making a criminal complaint against the person arrested, such person shall thereupon be discharged from custody."

We are of the opinion that the justice of the superior court erred in applying the last sentence of that section to the circumstances of the instant case. To understand the effect which that provision of the section had upon the common law it is necessary to read the section as a whole. Every sentence thereof is intimately related. They are to be read together and when they are it is obvious that the section is intended to identify specific occasions when certain requirements of the common law with reference to arrest may be dispensed with.

The first sentence applies solely to an officer authorized to make an arrest for any criminal offense and then only when such officer has view of the offense or when the offender is taken or apprehended in the act by any person. The third sentence is related to the first and second, as appears from its opening words: "Any person so arrested", which refer to an arrest made under certain circumstances by an officer without a warrant...

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