McKendree v. Christy

• Decision Date: 21 February 1961
• Docket Number: No. 10316,10316
• Citation: 29 Ill.App.2d 195,172 N.E.2d 380
• Parties: Samuel M. McKENDREE, Plaintiff-Appellant, v. Robert W. CHRISTY, Martin Schutzius, and Robert French, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 380

172 N.E.2d 380

29 Ill.App.2d 195

Samuel M. McKENDREE, Plaintiff-Appellant, v. Robert W. CHRISTY, Martin Schutzius, and Robert French Defendants-Appellees.

No. 10316.

Appellate Court of Illinois, Third District.

Feb. 21, 1961.

Unger, Litak & Groppi, Danville, for appellant.

Sebat, Swanson, Banks & Jones, Danville, for appellees.

ROETH, Justice.

Plaintiff filed suit against the Chief of Police and two police officers of the City of Danville to recover damages for an alleged false arrest and imprisonment and for alleged malicious prosecution. The case went to trial before a jury and at the close of plaintiff's case the trial court directed a verdict in favor of the defendants and against the plaintiff. Judgment was entered on the verdict and plaintiff appeals. On oral argument before this court counsel for plaintiff indicated that the claim of malicious prosecution had been abandoned so that we are now concerned only with the question of the alleged false arrest and imprisonment.

The question presented for review is the narrow one of whether the trial court was correct in directing a verdict at the close of plaintiff's evidence. Certain fundamental rules govern our determination of the question thus presented. We are precluded from weighing the evidence or undertaking to reconcile any conflict in the evidence. We must consider all the evidence in the aspect most favorable to the plaintiff, together with all reasonable inferences to be drawn therefrom. If, when so considered, there is any evidence, standing alone and considered to be true, together with the inferences that may legitimately be drawn therefrom, which fairly tends to support plaintiff's complaint, the trial court should not direct a verdict at the close of plaintiff's evidence. We consider the testimony only in its aspect most favorable to plaintiff. We are therefore required to examine the evidence keeping in mind the foregoing rules.

The record shows that on April 18, 1957, Officer Schutzius, while on his way home for lunch, observed plaintiff driving his car on the streets of Danville. He followed plaintiff to plaintiff's place of business where plaintiff stopped. The officer then advised plaintiff that they were going to the police station and that he was going to be booked for driving without a driver's license. Plaintiff started to show the officer a driver's license whereupon the officer said, 'I don't want to see that'. Officer Schutzius then radioed Officer French, who arrived in a police car. Plaintiff then drove his automobile to the police station, followed by one or both of the officers, where he was booked and directed to go upstairs to the police magistrate's office. There he was formally charged with driving without a driver's license, required to post a cash bond, entered a plea of not guilty and had his trial set for April 25, 1957. On his way out of the police station the desk sergeant asked to see his driver's license and plaintiff complied with the request. He then left, got into his automobile and drove away. Subsequently the charge before the police magistrate was dismissed on the motion of the city attorney. It is conceded that no warrant for plaintiff's arrest had ever been issued.

Section 657 of Chap. 38, Illinois Revised Statutes 1959, provides as follows:

'An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it.'

The cases interpreting this section are clear in holding that where an officer makes an arrest without a warrant for an alleged crime which has not been committed in his presence, such arrest is illegal if the crime has not actually been committed, and if the arrest is followed by imprisonment the officer is liable for false imprisonment, notwithstanding he had reasonable and probable cause for believing that a crime has been committed by the person arrested; in such case the absence of malice or the presence of probable cause constitutes no defense. 19 I.L.P. False Imprisonment § 5; Levin v. Costello, 214 Ill.App. 505; Wood v. Olson, 117 Ill.App. 128; Markey v. Griffin, 109 Ill.App. 212. Imprisonment is any unlawful exercise or show of force by which a person is compelled to remain where he does not wish to remain or to go where he does not wish to go. Lindquist v. Friedman's, Inc., 285 Ill.App. 71, 1 N.E.2d 529, affirmed 366 Ill. 232, 8 N.E.2d 625; Schramko v. Boston Store of Chicago, 243 Ill.App. 251. The burden of justifying the arrest falls upon the officer. 19 I.L.P. False Imprisonment § 9. Defendants concede the foregoing to be the rules applicable to this case.

Defendants contend that plaintiff's own evidence shows such a justification. While not conceding that this question arises on an appeal from a directed verdict, we have examined the record and find that such contention is without merit. Plaintiff introduced a photostatic copy of his driver's license as an exhibit on the trial. It was issued September 14, 1954,...