Lemmon v. King
| Decision Date | 08 May 1915 |
| Docket Number | 19,497 |
| Citation | 148 P. 750,95 Kan. 524 |
| Parties | HUGH A. LEMMON, Appellee, v. W. EUGENE KING, Appellant |
| Court | Kansas Supreme Court |
Decided. January, 1915.
Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.
Judgment reversed.
SYLLABUS BY THE COURT.
FALSE IMPRISONMENT -- Inducing Officer to Make Arrest -- No Warrant--Misleading Instructions. One who in good faith reports to a police officer the violation of a city ordinance, and at the same time asks that the violator be arrested, but does not assume to say what steps shall be taken to that end, is not thereby rendered liable for damages because the arrest is made without the issuance of a warrant.
Junius W. Jenkins, of Kansas City, and T. A. Witten, of Kansas City, Mo., for the appellant.
A. J. Herrod, of Kansas City, for the appellee.
Hugh A. Lemmon brought an action against W. Eugene King for damages resulting from an assault and battery and false imprisonment. He recovered a judgment for $ 500, and the defendant appeals.
The defendant was the president of a lumber company. According to his story he visited the yard office one Sunday afternoon and found his son and the plaintiff there, both of whom were employees of the company. The plaintiff was drinking liquor out of a quart bottle, which he immediately hid. The defendant asked what he was doing there, and on receiving an insulting reply said he didn't want him drinking and carousing there and ordered him from the place. The plaintiff left, but meeting the defendant on the sidewalk threatened to shoot him, using abusive language, accompanied by obscenity and profanity. The defendant drove to the police station in his automobile and reported the occurrence. An officer accompanied him back to the office, and finding the plaintiff drunk and abusive, arrested him and took him to the station. This version of the affair was in part corroborated by the defendant's wife, by the officer making the arrest, and by other witnesses, one of whom testified that the plaintiff had quit work that morning because he was intoxicated. The sergeant of police in charge of the station testified that when Lemmon was brought in he was drunk and very boisterous and abusive; that he was booked as drunk and disturbing the peace; that he was not locked up, but held until he gave a bond of ten dollars for his appearance the next morning.
The plaintiff testified that he had taken one drink of whisky on the morning of the day on which he was arrested, from a quart bottle belonging to himself and the defendant's son; that they also had a beer bottle containing diluted Jamaica ginger, from which they had been drinking; that his conduct toward the defendant had been inoffensive, but that the defendant had forcibly ejected him from the office and caused his arrest. The arrest was made without a warrant. Lemmon was detained at the station from half to three-quarters of an hour. He appeared the next morning and the case was dismissed. The city ordinances provide a fine for disturbance of the peace by the use of profane or obscene language, and authorize the arrest of any one found so intoxicated "as not to be able to take care of himself, or annoying or endangering the safety of others."
The jury found for the plaintiff on both counts, but fixed the recovery at a lump sum, the items of damage, or the amount allowed on each count, not being shown. The verdict necessarily implies findings that the defendant assaulted the plaintiff, either directly or by using more force than was necessary in putting him out of the office; that the plaintiff at the time he was arrested was not drunk and was not disturbing the peace.
A reversal is asked on the ground that the defendant could not be liable for the arrest, conceding it to have been wrongful, unless he requested or directed it, and that there was no evidence at all to that effect. The contention fails because, while there was much testimony that the defendant merely reported the facts, and that the officer acted only on his own initiative, or by the direction of his superior, there was some to the contrary. The plaintiff testified "that he waited there till the officer came with defendant in defendant's automobile, and the defendant said, 'There is the son-of-a-bitch, go get him.'" Another witness returned an affirmative answer to the question: "Before he arrested him or at any time, didn't Doctor King [the defendant] say, 'Take him down to the station?'" And the evidence as to what took place on the defendant's visit to the police station might possibly be regarded as showing what was in effect a request for the arrest.
In an instruction, after stating that the plaintiff claimed that the defendant had caused his wrongful arrest, the court added: "The defendant in his answer alleges that the plaintiff was drunk and disturbing the peace at the time he was arrested." The defendant maintains that this statement was prejudicial to him because it led the jury to suppose that his defense was based wholly on an attempt to justify the arrest, whereas his answer included a general denial, and he at all times contended that he was not responsible for the officer's act, this being made clear in the preliminary statement made to the jury in his behalf. The instruction in question concluded with these words:
"If you find from the evidence that the plaintiff at the time he was arrested by Officer Ryan was not drunk and was not disturbing the peace and that he was arrested at the solicitation and request of the defendant by said officer without a warrant, then you are instructed that the plaintiff would be entitled to recover upon his second cause of action."
This accords with the statement sometimes made that, inasmuch as an arrest made by an officer without a warrant, for an offense less than a felony, not committed in his presence, is illegal, one who requests it is liable as a participant in the wrongful act. However true that may be as a general rule the...
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...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. 1915E, 882. False imprisonment is not the proper action under the facts in this case. Bushardt v. United Inv. Co., 121 S......
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...for the jury whether these circumstances were suspicious and whether she did act as an ordinary reasonable person. In Lemmon v. King, 95 Kan. 524, 148 P. 750, L.R.A.1915E, 882, the plaintiff had been arrested without a warrant. He recovered judgment and on appeal we said: 'A reversal is ask......
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