Leve v. Putting

• Decision Date: 06 November 1916
• Docket Number: No. 14300.,14300.
• Citation: Leve v. Putting, 196 S.W. 1060 (Mo. App. 1916)
• Parties: LEVE v. PUTTING.
• Court: Missouri Court of Appeals

196 S.W. 1060

LEVE v. PUTTING.

No. 14300.

St. Louis Court of Appeals. Missouri.

November 6, 1916.

Rehearing Denied July 17, 1917.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by William Leve against August Putting. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. P. Williams, of St. Louis, for appellant. Mackay & Spencer, of St. Louis, for respondent.

ALLEN, J.

This is an action for unlawful arrest and false imprisonment. The suit was instituted against the appellant, Putting, and two police officers of the city of St. Louis; but it was afterwards dismissed as to the police officers. The trial before the court and a jury resulted in a verdict and judgment in plaintiff's favor for $100 actual damages and $100 as exemplary damages, from which judgment defendant Putting prosecutes the appeal before us.

The petition avers that on December 9, 1910, plaintiff was the owner and proprietor of a hardware store on Park avenue in the city of St. Louis, where he conducted also a repair shop; that on the day mentioned, at about 6 o'clock p. m., plaintiff, at the request of one Baum, a neighbor, and as a favor to the latter and without compensation, unscrewed a hydrant faucet; that while plaintiff was so doing, defendant Putting caused and induced the two police officers, "maliciously and with the intent to injure the plaintiff, to arrest this plaintiff, in said city of St. Louis, Mo., and did then and there, by force, arrest and lead him to, and place him in, a patrol (hoodlum) wagon, and did then and there by force carry him in said patrol (hoodlum) wagon, to his humiliation and shame, through the streets of the city of St. Louis, to and at the Soulard Police Station, near Seventh and Soulard streets of said city, and did then and there imprison him and detain him, restrained of his liberty, for the space of 30 minutes, without probable cause, and without right or authority so to do, and against the will of this plaintiff." And it is alleged "that the defendants, and each of them, on said 9th day of December, 1910, did, unlawfully, wrongfully, and maliciously, and with the intent to injure plaintiff, arrest and imprison this plaintiff, and detain him, restrained of his liberty as aforesaid without probable cause, and without right or authority so to do, and against the will of this plaintiff," to plaintiff's damage, etc. The prayer of the petition is for $2,000 actual damage and $3,000 exemplary damage.

The answer of defendant Putting contains first a general denial. It then proceeds to set up certain ordinances of the city of St. Louis, to wit, sections numbered 1434, 1512, 1430, and 1421 in the Revised Code of the city of St. Louis, 1912 (Rombauer), and avers that, at the time of the alleged unlawful arrest, plaintiff was engaged in and working at the business of plumbing in said city, contrary to the laws and ordinances thereof; that plaintiff was not a licensed plumber nor an apprentice working for a licensed plumber, and had not given the bond required to be given by plumbers in said city; that at the time of the alleged unlawful arrest plaintiff was making repairs, additions, and alterations of a fixture and pipe connected with the pipes of the city waterworks, and was engaged in repairing and working upon the pipes, fixtures, and appurtenances thereto, which were used to conduct water to and distribute it about the premises occupied by said Baum; that the work was not being done by plaintiff upon his own premises, nor as a matter of courtesy or accommodation, but as a matter of business for hire and compensation; that by the ordinances pleaded the acts mentioned were misdemeanors, and punishable as such; and that the alleged unlawful arrest complained of by plaintiff was because of such acts, and was made by lawful police officers of the city charged with the duty of enforcing its ordinances, "upon view of the commission of said offenses and upon reasonable ground to suspect and believe that the plaintiff was guilty thereof."

The reply denies generally the affirmative averments of the answer.

The evidence for plaintiff goes to show that he was engaged in conducting a hardware store on Park avenue in the city of St. Louis as alleged in his petition, and that the defendant was a plumber, whose place of business was located about two blocks from that of plaintiff; that on the evening of December 9, 1910, one Baum, who then conducted a store a few doors from that of plaintiff, purchased a faucet from plaintiff, and requested of plaintiff, as "a favor," to bring his wrench or wrenches and take off an old and broken faucet then on a water pipe in Baum's store, and put on this new one; and that plaintiff, without demanding or expecting compensation, proceeded to perform this task.

It appears that because of the broken faucet Baum was unable to obtain water needed upon his premises. And defendant testified that earlier in the day Baum had sent for him with the view of having him attend to the matter, but that defendant was otherwise engaged, and did not arrive until after plaintiff had been summoned as above stated.

According to plaintiff's testimony, while he was in the act of removing the old faucet defendant appeared upon the scene, cursed and abused him, and said: "I have caught you doing plumbing work. I will teach you a lesson" — and that defendant thereupon went out upon the street, summoned the two officers, and directed them to arrest plaintiff, whereupon plaintiff was placed under arrest and taken to a police station.

It is said that plaintiff was detained at a "patrol box" upon the street for about half an hour, and then was conveyed to the police station in a patrol wagon, without hat or coat, though the weather was quite cold. It appears that plaintiff was released, but required to appear in a police court on the following morning. And over defendant's objections plaintiff was permitted to show that in the police court he was charged with doing plumbing work without a license, and, as stated in the abstract, "that he was discharged without taking the stand at all, and without having to make any defense."

One of the police officers, called by plaintiff as a witness, testified that he and a brother officer were summoned by defendant to make the arrest; that defendant appeared upon the street and waved to the officers, and told them that a man within Baum's store was doing plumbing work; that the witness, after learning that plaintiff was not a licensed plumber, and upon the assurance of defendant that the work being done was plumbing work, placed plaintiff under arrest. And such, in effect, is the testimony of the other officer, who was called by defendant, except that he did not say that defendant waved or beckoned to the officers upon emerging from the store.

Defendant, testifying in his own behalf, denied that he said anything to plaintiff when he entered Baum's place of business as aforesaid, and denied that he summoned the officers, though he admits that he told the latter that a man was in the store doing plumbing work. And defendant introduced in evidence the ordinances pleaded.

There was also testimony pro and con relative to work done by plaintiff on certain other occasions, viz. connecting stoves with hot water tanks, but it is unnecessary to state it here.

It is argued that the trial court erred in refusing to peremptorily direct a verdict for appellant as requested by him; but we are not so persuaded. In this action neither malice nor want of probable cause is a necessary element to authorize a recovery. Pandjiris v. Hartman, 196 Mo. 539, 94 S. W. 270; Wehmeyer v. Mulvihill, 150 Mo. App. 197, 130 S. W. 681. But in any event it is a complete defense to an action of this character to show that the plaintiff was in fact guilty of the offense for which he was arrested. Pandjiris v. Hartman, supra. And it is urged that the evidence conclusively shows that this plaintiff was working at the business of plumbing within the meaning of section 1430, Revised Code of the City of St. Louis, supra, and was therefore guilty of the offense for which he was placed under arrest, and his arrest lawful. The...