McGann v. Allen

• Decision Date: 18 October 1926
• Citation: 134 A. 810,105 Conn. 177
• Court: Connecticut Supreme Court
• Parties: MCGANN v. ALLEN ET AL.

134 A. 810

105 Conn. 177

MCGANN v. ALLEN ET AL.

Supreme Court of Errors of Connecticut.

October 18, 1926

Appeal from Superior Court, Hartford County; L. P. Waldo Marvin Judge.

Action by Gertrude McGann against Edward N. Allen, Thomas McKone and James H. Madigan, to recover damages for alleged malicious prosecution, false imprisonment, and abuse of process. Verdict in favor of first two named defendants and against last named defendant was set aside on plaintiff's failure to file a remittitur, and plaintiff appeals. Error and new trial.

Cross-examination of prosecutor, who issued warrant for arrest, as to whether he expected officer to bring prisoner to police station held properly excluded in subsequent action for abuse of process.

Edward J. Daly and Herbert Spencer, both of Hartford, for appellant.

Joseph F. Berry, of Hartford, for appellee Madigan.

Argued before WHEELER, C.J., and MALTBIE, CURTIS, HAINES, and HINMAN, JJ.

WHEELER, C.J.

We take up first the assignment of error based upon the setting aside of the verdict. The plaintiff offered evidence to prove that:

At about 1 o'clock on the morning of February 19, 1925, after plaintiff had retired, the defendant Madigan, an officer on the Hartford police force, came to her residence, informed her that he had a warrant for her arrest, that a Mrs. Blasdell an employee in Sage-Allen Company's store, had made a confession that she had stolen several thousand dollars worth of their goods, and that she had sold plaintiff two dresses, knowing the price was way below the selling price. Officer Madigan placed her under arrest, and they left the house and entered a closed automobile in front of the house, driven by defendant Allen, the general manager of the Sage-Allen store. Plaintiff sat in the front seat with Mr. Allen. As Mr. Allen drove along, he accused plaintiff of buying these goods of Mrs. Blasdell, and she replied, " I did not; " and he said, " I can prove it." The automobile stopped at Sage-Allen's store, although she had not been told she was to be taken there, and she was taken into the store and up to Mr. Allen's office.

Seated in the office were several men, Messrs. Allen and McKone, defendants, McGinley, Eastman, a detective for another department store, Gavin and another man, and a Mrs. Gotis. A general conversation ensued about Mrs. Blasdell's selling these goods to plaintiff, and then she was left alone with Mr. Eastman, and while there Mr. McKone came in and among other things, said, " Now, why argue about this thing; why don't you admit that you bought it, and settle for it." Plaintiff replied, " No; I am not going to settle for anything that I have not done." And at this time Allen and Madigan were in the room. and Madigan said, " Aren't you going to settle for it?" and plaintiff replied, " No; " and Eastman repeatedly said, " Don't you realize you are under a $5,000 bond? You don't want to have to go down to the police station and stay all night?" McKone continued to urge her to settle. At Mr. Allen's suggestion, Mrs. Blasdell was brought down and asked by Mr. McKone if she sold plaintiff a suit, and said, " No; a tan dress." Plaintiff said she had not bought it, and Mrs. Blasdell advised her to settle, saying Mr. Allen was going to be very fair.

Plaintiff later asked if she was under arrest, and Mr. Allen said, " Yes; " and she said, " If I am, I want you to take me to the police station; " and then turned to Madigan and said, " You did not have any right to bring me here, did you?" And he answered, " I thought you would much prefer to come here and settle this thing." Thereafter both Mr. McKone and Mr. Eastman said they believed plaintiff was innocent, and asked Mr. Allen, " Why make her admit or settle this, if she hasn't done it?" But Mr. Allen replied, " No; she is not telling the truth." After being in the store a half hour, plaintiff was taken to the police station, and put in a cell in the matron's room for about 20 minutes, when she was released on giving a bond. the case was called in the police court on February 19th, and continued to February 24th, when plaintiff was tried, found guilty, and appealed to the superior court. the case was there tried to the court, and plaintiff was acquitted.

The information on which plaintiff was tried in the police court charged her in the first count with stealing goods of the Luke Horsfall Company of the value of $50, and in a second count with receiving stolen property, the goods of the Sage-Allen Company, of the value of $50. Plaintiff was working in New York City at the time she is charged with stealing the goods of Luke Horsfall Company.

Plaintiff suffered indignity and humiliation from being arrested, taken to Sage-Allen Company's store, and from the trials in the police and superior courts, and has also suffered mental anxieties and worries through these and the attendant publicity resulting from the court trials and the newspaper accounts of the matter. She has had, and has as a result, a slight condition of nervousness requiring a physician's care, not at present serious, but she is subject to conditions that are disturbing. She has expended for attorney's services and expenses $520 in the trials in the city and superior courts.

The defendants offered evidence to prove that:

For some time prior to February 18, 1925, Sage-Allen Company, who conducted a department store in Hartford, had suffered losses in their cloak and suit department. The company employed Pinkerton's Detective Agency to investigate these losses, and on this day its detective, McGinley, procured from Mrs. Blasdell, an employee of this company, a statement in which she said she had taken goods of the value of $5,400 from the company and delivered them to four of her friends, and had sold to plaintiff some of these goods at a price less than their selling price, and used the money received for her own use. When defendant Allen returned from Springfield at about 6 o'clock on the afternoon of this day he was shown this confession, and at once communicated with defendant McKone, a practicing lawyer for upwards of 10 years in Hartford, who later came to the store, saw this confession, and advised Mr. Allen to communicate with the police department of Hartford. As a consequence of this advice the department was communicated with, and Detective Sergeant Madigan (one of the defendants) detailed on the case. After he had seen the confession, either he or Mr. McKone communicated with Mr. Bonee, the prosecuting attorney of the city court of Hartford, and by his direction Mr. McKone went to the city court and took from the desk of the clerk of the court a blank complaint and warrant signed by the clerk. Mr. Allen and Officer Madigan accompanied Mr. McKone to the clerk's office. The complaint and warrant were handed Mr. Bonee by Mr. McKone, and he was apprised of the confession, and thereafter filled in the blank spaces and handed it to Officer Madigan to serve.

Defendants McKone and Madigan then returned to Sage-Allen Company's store and Mr. Allen later drove them and Officer Hickey to plaintiff's residence in his car. The plaintiff was there arrested under this warrant by Sergeant Madigan and taken in an automobile, driven by Mr. Allen, to the Sage-Allen store, and there informed by the three defendants of the confession of Mrs. Blasdell that plaintiff had received stolen goods belonging to that company. No suggestions were made, except by Officer Madigan, that plaintiff be taken to this store. Prosecutor Bonee issued the warrant upon information given him by Officer Madigan, and upon inspection of the statement of Mrs. Blasdell, and upon his own responsibility, and was not influenced in its issue, or in what he did, by Messrs. McKone or Allen. No objection was made by plaintiff to her going to this store, and the purpose of Officer Madigan in taking her there was to secure a confession from her, and to have her face the person who had made the confession. No suggestion was made to plaintiff of settlement while at the Sage-Allen store by either of the defendants, or any one else. The plaintiff was taken to the police station upon her own request, immediately after she had insisted upon her innocence and refused to make a confession, and after having been at the store about 15 minutes in all. The warrant under which plaintiff was first arrested on February 19th charged her with having jointly received stolen property with others.

While the case was pending, the prosecutor, having become satisfied that he could not maintain the charge as first made, and having determined to charge them individually, destroyed this warrant and caused to be issued another warrant, charging plaintiff with lesser offenses, viz. in count 1 with having received stolen property from Luke Horsfall Company, and in count 2 with having received stolen property from Sage-Allen Company. The first count was nolled, and she was found guilty on the second count.

The court set aside the verdict of $6,000 against Officer Madigan as excessive. Under the charge of the court, the only issue was as to whether the taking of the plaintiff while under arrest to the store of the Sage-Allen Company, instead of to the police station, was an abuse of process. Damages suffered through an abuse of legal process not malicious must be compensatory; that is, compensation for the natural consequences resulting, which would include injury to the feelings because of the humiliation, disgrace, or indignity suffered, together with injury to the person and physical suffering as well as special damage incurred in consequence of the wrong, as loss to one's business or property, or expense caused in curing the physical or mental injury, or in protecting one's person from arrest...