Merriam v. Continental Motors Corp.

• Citation: 64 N.W.2d 691,339 Mich. 546
• Decision Date: 07 June 1954
• Docket Number: No. 51,51
• Parties: MERRIAM v. CONTINENTAL MOTORS CORP.
• Court: Supreme Court of Michigan

Page 691

64 N.W.2d 691

339 Mich. 546

MERRIAM v. CONTINENTAL MOTORS CORP.

No. 51.

Supreme Court of Michigan.

June 7, 1954.

U. S. A. Heggblom, Detroit, for appellant.

Butzel, Eaman, Long, Gust & Kennedy, Detroit, Philip T. Van Zile, Detroit, of counsel, for appellee.

Before the Entire Bench.

REID, Justice.

Plaintiff appeals from a judgment for defendant notwithstanding the verdict, rendered in circuit court. Plaintiff sued for damages for malicious prosecution and false imprisonment; the verdict of the jury was for plaintiff for $5,000 damages. In April, 1947, plaintiff was arrested for simple larceny on complaint of Mr. Wing, officer of defendant in charge of plant protection, and was later tried and acquitted. This action was begun August 23, 1948, and was dismissed for no progress, March 1, 1950; on September 13, 1950 the order of dismissal was vacated and the cause reinstated.

In 1947, the defendant Continental Motors Corporation, hereinafter referred to as CMC, owned and operated a large, three-story building in Detroit. March 1, 1947, defendant CMC leased a part of the building to Kaiser-Fraser Corporation, referred to hereafter as K-F, for manufacture of automobile engines. A number of CMC's employees were transferred to the employment of K-F, among them plaintiff Merriam, on March 19, 1947; he had worked for defendant CMC as 'tool trouble man' by the hour, and was assigned the same kind of work by K-F. The defendant CMC retained a large part of the building for its own operations, including the entire third floor where the department 'AA-7' was used by defendant for the manufacture of small engines used for bicycles, etc., which had nothing to do with K-F's operations on larger engines. Defendant's plant protection department had received reports of considerable loss of small parts in the AA-7 department.

About midnight, Saturday, April 5, 1947, no one was on the third floor except 2 or 3 maintenance electricians doing their work while the plant was closed down. K-F was operating that night in its part of the building. Two of defendant's plant protection men, Sgt. Collins and officer Porter, came to the department AA-7 and as they stood there, plaintiff Merriam and one Heiden came out of the AA-7 stockroom walking toward Collins and Porter; plaintiff Merriam was carrying two AA-7 carburetors in his hands. The plant protection men stopped them and asked them who they worked for; plaintiff Merriam told him 'Continental.' Collins asked to see his badge and plaintiff then told him, 'I work for K-F.' The plant protection officers then asked what plaintiff was doing with the carburetors and plaintiff said he was taking them for experimental purposes and was going to do the experimenting himself. Plaintiff Merriam testified, 'The carburetors could not be used on K-F engines. I knew when I went to the third floor that I was on CMC property and that the carburetors belonged to CMC.' Plaintiff Merriam did not offer to the plant protection men any excuse or reason for being there other than he wanted the carburetors for experimental purposes. The plant protection men Collins and Porter took the carburetors from plaintiff Merriam and escorted plaintiff and Heiden to the K-F plant protection office and turned them over to that office, which did not cause plaintiff's arrest, but temporarily suspended plaintiff from employment at K-F.

On Monday, April 7, 1947, a report by Sgt. Collins dated April 5, 1947 (exhibit No. 10 in the record) was submitted to Mr. Raven, vice president in charge of the plant protection department of defendant, and the report was discussed with the plant protection chief, Mr. Wing, who under instructions of Mr. Raven, contacted Detroit police; the police made their own investigation and on the back of the report as written by the police, the assistant prosecuting attorney endorsed his authorization of the issuance of a warrant for plaintiff's arrest.

In plaintiff Merriam's brief, there is the following statement:

'In the answer and amended answer to the plaintiff's declaration, the defendant attempts to justify the arrest and prosecution on the following grounds:

'No. 1. That the defendant did make a full and complete statement to the prosecuting officials of all facts relating to the alleged charge, and

'No. 2. That the arrest was solely on the basis of the independent investigation by the Detroit police department.

'The statements of questions involved are therefore narrowed to these two issues.'

Plaintiff limits his questions involved accordingly.

However, the answer and amended answer of defendant denies the statement in the declaration that the defendant 'maliciously and without probable cause' put plaintiff under arrest. Want of malice and existence of probable cause were insisted on by defendant in motion at close of proofs, in defendant's requests to charge and were emphasized in the court's opinion on motion for judgment notwithstanding the verdict, and are insisted on in defendant's brief in this court. Plaintiff Merriam is plainly wrong in his attempt to limit the defense to the prosecuting attorney's advice and the police department's independent investigation.

Defendant insists in substance on the following as shown largely by plaintiff Merriam's own admissions, by statements of plaintiff's witnesses or other testimony undisputed:

1. That plaintiff and Heiden were not employed by defendant and had been discovered on defendant's property with defendant's carburetors in their hands;

2. That they were discovered on a Saturday night about midnight when defendant's plant was shut down and the department where they were found was not operating.

3. That plaintiff when questioned at that time, first said he worked for defendant, and when asked for identification changed his story and said he worked for K-F.

4. That the two men were not employees of defendant but were employees of K-F and the carburetors were not connected with nor usable by K-F.

5. That the two men had no written authority to be on defendant's premises or to have defendant's carburetors in their possession.

6. That neither plaintiff Merriam nor Heiden offered any reason or excuse for their being where they were discovered nor for having the carburetors in their possession other than that Merriam wanted the carburetors for his own experimentation. (Plaintiff testified, 'I said I was going to do the experimenting myself.')

7. That plaintiff Merriam was given a penalty by K-F for being off K-F property, that is, he was laid off for 2 weeks and did not appeal from that penalty, to the labor relations full committee.

8. That the Detroit police, at defendant's request, made an investigation of their own, had filed a report substantiating the facts as defendant understood the facts, and the recommendation of the assistant prosecuting attorney was endorsed on the police report.

The foregoing 8 statements (claims of defendant) are practically undisputed in the record. To these, we may add that it is worthy of note that plaintiff Merriam did not before his arrest claim to any person connected with the defendant corporation, nor to any other person, so far as the record shows, that Schaefer, a tool trouble man of defendant CMC, had told Merriam he wanted Merriam to get the carburetors, nor that the carburetors were worthless junk.

The undisputed facts in this case, very persuasively indicate probable cause. The above quoted statement of defendant, 'I said Was going to do the experimenting myself,' in view of undisputed surrounding circumstances, is highly indicative of guilt, and plaintiff sought on his trial for larceny to explain it away, by...