Martin v. Castner-Knott Dry Goods Co.

• Court: Tennessee Court of Appeals
• Writing for the Court: HICKERSON, Judge.
• Citation: Martin v. Castner-Knott Dry Goods Co., 181 S.W.2d 638, 27 Tenn.App. 421 (Tenn. App. 1944)
• Decision Date: 22 January 1944
• Parties: MARTIN v. CASTNER-KNOTT DRY GOODS CO. RYAN v. SAME.

181 S.W.2d 638

27 Tenn.App. 421

MARTIN v. CASTNER-KNOTT DRY GOODS CO.

RYAN v. SAME.

Court of Appeals of Tennessee, Middle Section.

January 22, 1944

Certiorari Denied by Supreme Court June 10, 1944.

Appeal in Error from Circuit Court, Davidson County; Weldon B White, Judge.

Consolidated actions by Mrs. Alex Martin and by Anne Thomas Ryan, by next friend, against Castner-Knott Dry Goods Company, to recover damages for false arrest. From an insufficient judgment, the plaintiffs appeal in error.

Reversed and remanded.

Norman Farrell and Jack Keefe, both of Nashville, for plaintiffs in error.

Keeble & Keeble, of Nashville, for defendant in error.

HICKERSON Judge.

Plaintiffs Mrs. Alex Martin and Anne Thomas Ryan, brought these suits against defendant, Castner-Knott Dry Goods Company, to recover damages for false arrest. They alleged that they were illegally arrested by defendant on a false charge of stealing a skirt. Two trials have been held in the Circuit Court. On the first trial the court directed a verdict in favor of defendant. Plaintiffs appealed in error to this Court where the judgment of the trial court was reversed and the case remanded for a new trial. In denying a petition for certiorari the Supreme Court wrote a memorandum opinion in which it stated:

'We think there is ample authority, in fact the weight of authority, to support the contention that the owner of a store has the right to detain a person therein, for a reasonable time, for proper investigation, who he has reasonable grounds to believe has not paid for what he has received or is attempting to carry away goods without payment. However, we think it is a question for the jury, upon a proper charge, to decide whether or not the defendant in the instant case had reasonable grounds under all the facts and circumstances for believing that plaintiffs were attempting to carry away goods without making payment. The fact that plaintiffs were able to show and did show that they were innocent does not deprive defendant of this defense. If the plaintiffs unwittingly acted in such a way as to justify a reasonable man in believing that they were attempting to carry away goods of the defendant without making payment, they must bear the consequences of their said act and will not be allowed to complain.' (This opinion does not appear in the record but the parties agree that the foregoing is a correct excerpt from it.)

Upon the filing of this memorandum opinion by the Supreme Court plaintiffs filed a petition seeking to have the opinion stricken from the record on two grounds: (1) That the Supreme Court, after denying the writ, had no jurisdiction to file the opinion; and (2) that the Court's statement of the law applicable to a case of false arrest by a private individual, of an innocent person, was not the law in Tennessee.

The opinion was withdrawn and stricken from the record by the Supreme Court.

Upon the remand the cause was tried in the Circuit Court and a verdict was rendered in favor of plaintiffs for $100 compensatory damages and $100. punitive damages, in each case. Judgment was entered on these verdicts. Plaintiffs have appealed in error to this Court.

There is no controversy about the material facts. Defendant, a private person, arrested plaintiffs on a charge of larceny. Plaintiffs were not guilty of the charge. The case was tried in the lower court upon the theory that probable cause on the part of defendant to believe that plaintiffs had committed the offense of larceny justified the arrest which defendant made. The question was squarely presented in the trial court by plaintiffs that probable cause was no justification for the arrest of plaintiffs by defendant when no offense, in fact, had been committed. The trial court ruled against plaintiffs on this question. Numerous errors have been assigned by plaintiffs which we shall consider together. Two determinative questions are presented to us:

First, the trial court permitted defendant to rely upon the following plea as a defense: 'Comes the defendant, Castner-Knott Dry Goods Company and without waiving, but relying upon its pleas heretofore filed, to-wit: its plea of the general issue and the special plea, for further plea says that for each and every of its acts on or about September 27, 1941, relating to or affecting the plaintiff in this cause, however said acts may be construed or interpreted, the defendant had reasonable and probable cause for its said acts, and is therefore not liable to the plaintiff in damages in any amount'; admitted evidence in support of this plea; and charged the jury that if this were established by the evidence that it constituted a defense to plaintiffs' suit, although defendant admitted that no offense had actually been committed. Were these rulings of the court erroneous?

Second, was the verdict and judgment entered thereon inadequate?

These questions will be considered in the order stated.

Code Section 11541 sets out the conditions under which a private person may make an arrest, as follows: 'Private person may arrest, when.--A private person may arrest another: (1) For a public offense committed in his presence; (2) when the person arrested has committed a felony, although not in his presence; (3) when a felony has been committed, and he has reasonable cause to believe that the person arrested committed it.'

In McCaslin v. McCord, 116 Tenn. 690, 706, 94 S.W. 79, 83, 8 Ann.Cas. 245, after reviewing the statutory law of Tennessee in regard to arrest, the Court said: 'Our statutes, as we have construed them, are in some points at variance with the common law, but we need not go into that phase of the matter, as we think the Legislature, in the sections which we have quoted intended to cover the whole subject of arrest without warrant by a private person.'

Plaintiffs contend that the foregoing Code Section and the Supreme Court opinion which construes it establish the rule in this State that a private person cannot justify an arrest under any circumstance unless it is first shown that the offense for which the arrest is made has been actually committed. The foregoing Code Section states that an arrest by a private person may be made: '(1) For a public offense committed in his presence; (2) when the person arrested has committed a felony, although not in his presence; (3) when a felony has been committed, and he has reasonable cause to believe that the person arrested committed it'; and our Supreme Court stated in McCaslin v. McCord, supra, that the foregoing statute covered 'the whole subject of arrest without warrant, by a private person.'

Plaintiffs' contention is supported by the great weight of authority in the United States. A full annotation in which this question is discussed is found in Burton v. McNeill, 196 S.C. 250, 13 S.E.2d 10, 133 A.L.R. 603, 608. In this annotation (133 A.L.R., 610) decisions from nine jurisdictions support the rule that in order to justify an arrest by a private person the person arrested must have actually committed the felony with which he is charged. The Tennessee statute relaxes this rule to the extent that the arrest by a private person can be justified when a felony has actually been committed and the private person making the arrest has reasonable cause to believe that the person arrested committed it.

In the same annotation (133 A.L.R., 613) decisions from twenty-seven jurisdictions are cited in support of the rule that in order to justify an arrest by a private person it must be shown that the felony for which the arrest was made was actually committed by someone. In discussing this rule it was said in the annotation: 'The rule most commonly recognized with respect to the right of a private person to make an arrest without a warrant for the commission of a felony is that an arrest is justified if a felony was in fact committed by someone and if there was 'reasonable' or 'probable' cause or grounds to believe or suspect that the person arrested was the one who committed the felony. Supporting the rule is section 119, vol. 1 of the American Law Institute Restatement of the Law of Torts, which provides that a private person is privileged to arrest another without a warrant for a criminal offense 'if an act or omission constituting a felony has been committed and the actor reasonably suspects that the other has committed such act or omission.' There are a number of decisions supporting or recognizing the rule, some of which were controlled by statutory provisions.'

Only four jurisdictions are cited to support the rule that a private person may make an arrest when he has probable cause to believe that an offense has been committed and that the person arrested committed it. 133 A.L.R., 619.

Under Code Section 11536 an officer may arrest without a warrant for a breach of the peace threatened in his presence or upon a charge made to him, upon reasonable cause, that a felony has been committed by the person arrested; but that latitude is not given to a private citizen.

Defendant principally relies upon three Tennessee Decisions to support its contentions:

(1) Travis v. Bacherig, 7 Tenn.App. 638: In this case an offense had actually been committed, so it is distinguished from the case at bar on that ground. Here, no offense had been committed.

(2) Little Stores v. Isenberg, 26 Tenn.App. 357, 172 S.W.2d 13, 16: The facts of this case are quite similar to the facts before us. In the Isenberg case this Court (Eastern Section) said that: 'The essence of...