Kominsky v. Durand, No. 8199.

• Court: Rhode Island Supreme Court
• Writing for the Court: CONDON, Justice
• Citation: 12 A.2d 652
• Parties: KOMINSKY v. DURAND.
• Decision Date: 23 April 1940
• Docket Number: No. 8199.

12 A.2d 652

KOMINSKY
v.
DURAND.

No. 8199.

Supreme Court of Rhode Island.

April 23, 1940.

12 A.2d 652

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

12 A.2d 653

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...