McKenna v. Whipple
| Decision Date | 04 August 1922 |
| Citation | 118 A. 40,97 Conn. 695 |
| Court | Connecticut Supreme Court |
| Parties | McKENNA v. WHIPPLE et al. |
Appeal from Superior Court, Windham County; William M. Maltbie Judge.
Action by James P. McKenna against John W. Whipple and others to recover damages on count 1 for a malicious prosecution, and on count 2 for a false imprisonment, brought to the superior court for Windham county, and tried to the court. Judgment for defendants, and plaintiff appeals. Reversed and remanded.
On March 28, 1921, defendant Whipple was traveling in an automobile on the highway leading from Pomfret to Putnam, and when he reached a point in Putnam near the house of one Davis, he saw the car of plaintiff approaching at a distance of several hundred feet, and proceeding in a dangerous and zigzag manner, in consequence of which he turned his own car to the extreme right of the road. When about opposite Whipple's car plaintiff turned his own car to his left and struck the left-hand fenders of Whipple's car with great force, and greatly damaged Whipple's car and his own car. At the time of the collision plaintiff had a clear way to pass Whipple without colliding. After the collision Whipple and plaintiff became engaged in a controversy, and during it the defendant Averill appeared. He examined the car, and found in plaintiff's car a bottle and broken glass, and he believed he detected the odor of liquor, and so reported to Whipple. Plaintiff was excited somewhat incoherent in his talk, and falsely accused Whipple of not keeping to the right of the road; his appearance manner, and talk were such as would naturally be expected of one under the influence of liquor or drugs. From all of these circumstances Whipple and Averill honestly believed plaintiff was then under the influence of liquor or drugs, and that belief was a reasonable one.
The plaintiff requested Whipple to take him to Putnam two miles distant, and he refused, and then at plaintiff's request Averill took him to Putnam, and for this plaintiff paid him $2, but in an insulting manner. Later Whipple and Averill met in Putnam defendant Laird, a police officer, and complained to him that plaintiff had driven his automobile into Whipple while under the influence of liquor or drugs, and requested his arrest. They sought out plaintiff, and a further controversy ensued between Whipple and the accused, in the course of which Whipple again accused plaintiff of being intoxicated.
Laird requested plaintiff to show a license for the operation of his car and a certificate of registration for the car, but he refused. Laird then took him to the police station, where he was locked up until 11:30 p. m., when he was released. While Laird was present plaintiff continued to act in an unnatural manner, was excited and somewhat incoherent in speech, and had the appearance of being under the influence of liquor or drugs. All of the defendants honestly entertained the belief that he was under such influence, and further they believed that he had operated his auto while in this condition at the time of the collision. Whipple and Averill did believe, and there was probable cause for them to believe that the plaintiff at the time of the collision was driving his automobile while under the influence of liquor or drugs. The complaint that plaintiff had operated his automobile while under the influence of liquors or drugs came to Laird by the speedy information of Whipple and Averill, was believed by Laird to have been made in good faith and by responsible persons, and was confirmed by his own observation of the plaintiff. Neither of defendants knew plaintiff before this occurrence.
Plaintiff was subsequently brought before the police court in Putnam, charged with intoxication and with operating an automobile while under the influence of liquor or drugs, and after due trial had was acquitted and discharged. The plaintiff has been since 1911 a practicing physician and surgeon of extensive practice in Providence.
The court concluded as to the first count that defendants had probable cause to believe, and did believe from circumstances known to them before any steps had been taken for his arrest, that the plaintiff had committed the criminal offense of operating a motor vehicle while under the influence of liquor or drugs. As to the second count that " as the offense of being found intoxicated was committed, if at all, in Laird's presence, the discharge of plaintiff would prevent any justification of the arrest by Laird as regards that charge," and that, since the arrest for the claimed offense of operating a motor vehicle was made upon speedy information from responsible persons, believed by the officer to be given in good faith, and substantiated by the facts within his own field of observation, it was therefore justified.
Under Gen.St.1918, § 223 (Rev.1949, § 465), authorizing peace officers to arrest without previous complaint or warrant any person for any offense in their jurisdiction, when the offender shall be apprehended in the act or upon the speedy information of others, defendant Laird, a police officer, had the right to arrest plaintiff for the offense of driving an automobile while under the influence of liquor or drugs upon the speedy information of the other defendants, but acted at his own peril in arresting plaintiff for being intoxicated at time of arrest.
Patrick J. Danahey, of Willimantic, for appellant.
Charles L. Torrey and Mahlon H. Geissler, both of Putnam, for appellees.
The complaint is in two counts, the first for a malicious prosecution, the second for a false imprisonment. The first count alleges that defendants Whipple and Averill made complaint to defendant Laird, a police officer in Putnam, charging plaintiff with being intoxicated; that plaintiff was arrested upon this charge by Laird, and locked up in Putnam; that he was on March 29, 1921, brought before the police court of Putnam on said charge, and defendants testified against him, and charged him with being intoxicated, the offense charged against the plaintiff; that the charge was false, and upon trial therefor plaintiff was acquitted and discharged; that Whipple and Averill made the charge from motives of malice; and that there was no reasonable or probable ground for the prosecution.
The second count made all of the above allegations a part of it except the allegation as to malice and probable cause, and further alleged that defendants caused the false charge that he was intoxicated to be made without any reasonable cause; that plaintiff was arrested by...
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Santana v. City of Hartford
...activity cannot be established by a fair preponderance of the evidence in a subsequent civil proceeding. See also McKenna v. Whipple, 97 Conn. 695, 701, 118 A. 40 (1922). The plaintiff, therefore, still bore the burden of proving, by a fair preponderance of the evidence, that the alleged cr......
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...529; State v. McAfee, 107 N.C. 812, 12 S.E. 435, 10 L.R.A. 607; State v. Rollins, 113 N.C. 722, 18 S.E. 394. See also McKenna v. Whipple, 97 Conn. 695, 118 A. 40; People v. Ward, 226 Mich. 45, 196 N.W. 971; Fitzpatrick v. Commonwealth, supra, 210 Ky. 385, 275 S.W. 819, headnote 27; Edgin v.......
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Griffin v. Parker
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