Moore v. Thompson

• Decision Date: 28 July 1892
• Court: Michigan Supreme Court
• Parties: MOORE v. THOMPSON.

52 N.W. 1000

92 Mich. 498

MOORE v. THOMPSON.

Supreme Court of Michigan

July 28, 1892

Error to circuit court, Washtenaw county; EDWARD D. KINNE, Judge.

Action by Kate L. Moore against Wilford B. Thompson. From a judgment for plaintiff, defendant brings error. Reversed.

Henry C. Waldron, (B. M Thompson, of counsel,) for appellant.

Sawyer & Knowlton, (E. D. Norris, of counsel,) for appellee.

MONTGOMERY J.

This is an action for slander and false imprisonment. The plaintiff recovered, and the defendant brings error. It is first claimed that trespass on the case for false imprisonment cannot be joined with case for slander. Since the statute (How. St. � 7759,) trespass on the case lies for false imprisonment as well as for slander, and we think no valid objection exists to joining the two in one action. Bellant v. Brown, 78 Mich. 294, 44 N.W. 326; Long v. Wayne Circuit Judge, 27 Mich. 164; Miles v. Oldfield, 4 Yeates, 427; Krug v. Ward, 77 Ill. 603; Blalock v. Randall, 76 Ill. 227. See also, 1 Chit. Pl. 199.

The testimony on behalf of plaintiff tended to show that she first came to Ann Arbor in December, 1887, and entered the homeopathic department of the university as a student. It appears that she was without means, and, for the purpose of supporting herself and children, she applied to Dr. Wood, a member of the faculty, for assistance in securing a situation as nurse, and was by him recommended to Mrs. Waldron, who employed her, and in whose employ she remained for about four weeks. After she left Mrs. Waldron missed a night dress, a corset, a pair of stockings, and some other articles of small value, which had been mislaid by the housekeeper. Mrs. Waldron suspected the plaintiff of stealing them, and communicated her suspicions to the defendant, her brother-in-law, and requested him to endeavor to secure the missing articles of plaintiff. The defendant came to Ann Arbor, bringing with him one Mr. Hallock. Mrs. Waldron also sent by the defendant a letter to Dr. Wood, in which she communicated her suspicions to Dr. Wood, and requested his co-operation with Thompson. Hallock and defendant called upon Dr. Wood, and laid the charges before him. The plaintiff was then sent for, and came in response to the request, and earnestly protested her innocence. The defendant, in the presence of Dr. Wood and Mr. Hallock, charged her with the larceny of the articles, and urge her to produce them, stating, "We have traced the things to you." Dr. Wood had an interview with her in the inner office, when, according to her testimony, Dr. Wood informed her that an officer was at hand to arrest her if she did not produce the stolen articles. The defendant testified that he was in a position to hear this conversation which occurred in the inner office. It is claimed by the defense that there is no evidence of false imprisonment. The plaintiff further testified upon this subject that she turned to go out; that Dr. Wood preceded her to the door; that she supposed that he was going to let her out, as he had always done before, but that he stood there, and held his hand on the door, and did not take his hand off, and did not let her go out; that she wanted to go out, although she made no forcible effort to do so. She was asked, "Why didn't yo go out?" and answered, "Dr. Wood was at the door." Question, "I know he was, but why didn't you go out?" to which she answered, "I could not walk through a closed door." The bill of exceptions also shows that she was forcibly detained, but it is claimed that this was an error of the stenographer in reporting her testimony. In our view, it is immaterial. The circumstances which constituted the restraint upon her liberty are fully detailed. She further testified that Dr. Wood said to her that he would give her just one hour to produce the things or acknowledge her guilt, and that she felt that she was a prisoner; that she had been told that an officer was present, and that she found Mr. Hallock present in the outer office, and that Mr. Thompson knew of this understanding, and also that he, during the time, called Hallock to one side, and held whispered conversations with him; and of the further fact that Dr. Wood, as her testimony tends to show, said, in the presence of defendant, "She is willing you should go and search her house;" and that she replied, "I cannot go through the streets of Ann Arbor with an officer, but I would go with Dr. Wood or with Mrs. Waldron or with any other person;" and that Mr. Thompson replied, "I will not go without a proper officer." And that thereupon a bus was sent for, and plaintiff was conducted by defendant and Hallock to the bus, and driven to her house, where a search of her trunk, etc., was made.

We think these facts were sufficient, if believed by the jury, to justify a finding that plaintiff understood that she was under restraint, and that defendant knew that she so understood is evidenced from his actions and his language as testified to by plaintiff. It is not necessary, in order to constitute false imprisonment, that the party be restrained after an unsuccessful attempt to escape from custody. It is enough if the restraint be put upon a person either by force or fear. Cooley, Torts, 195; Josselyn v. McAllister, 25 Mich. 45.

It is also claimed that there was no proof of actual malice, and that the circumstances show that the action was privileged as a matter of law. The court did charge the jury as follows. "If you shall find that the defendant had no malice-that is, hatred or ill will-against the plaintiff, and that he had just cause or excuse for making the accusation, but that he made the charges simply to recover the things which he supposed the plaintiff had taken, then your verdict must be for the defendant, so far as the charges of slander are concerned." And also: "Under the proof in this cause, the words spoken by the defendant come under the class which the law designates as 'privileged communication,' and the plaintiff cannot recover unless she shows actual malice-that is, hatred or ill will-on the part of the defendant, or shows a want of just cause or excuse in making the accusation." He also charged the jury that "if the defendant communicated to Dr. Wood and others a criminal charge against the plaintiff, and in doing so acted wantonly and recklessly, you may consider such reckless and wanton conduct as bearing upon the question of malice." We think these instructions correctly stated the rule of law. In Newell on Defamation (page 501) it is said: "The law requires such charges to be made in the honest desire to promote the ends of justice, and not with spiteful or malicious feelings against the person accused, nor with the purpose of obtaining any indirect advantage against the accuser. Nor should serious accusations be made recklessly or wantonly; they must always be warranted by some circumstances reasonably arousing suspicion. And they should not be made unnecessarily, to persons unconcerned, nor before more persons nor in stronger language than necessary." In Padmore v. Lawrence, 11 Adol. & E. 380, it was shown that the defendant accused the plaintiff, in the presence of a third person, of stealing his wife's brooch. Plaintiff wished to be searched. Defendant repeated the accusation to two women, who searched the plaintiff, and found nothing. Subsequently it was discovered that the defendant's wife had left the brooch at a friend's house. It was held that the mere publication to the two women did not destroy the privilege attaching to charges, if made in good faith, but that all the circumstances should be left to the jury, who should determine whether or not the charge was made recklessly and unwarrantably, and repeated before more persons than necessary.

The defendant requested the court to charge the jury as follows "Dr. Wood was Mrs. Waldron's agent, and not Mr. Thompson's, and you must not hold defendant responsible for what Dr. Wood or Mrs. Waldron said or did." This request was not given, but the court did charge upon the subject of damages: "If you find that the plaintiff is entitled to recover in this cause, I charge you that she is entitled to such damages as shall compensate her for the injury she has received to her character, and for the actual mental pain she has suffered by reason of it." The court had admitted, against the defendant's objection, testimony tending to show a misunderstanding between Mrs. Waldron and plaintiff, of which it does not appear that defendant had any knowledge; and the plaintiff's counsel, in summing up to the jury,...