Peloquin v. Hibner

• Decision Date: 11 April 1939
• Citation: 285 N.W. 380,231 Wis. 77
• Court: Wisconsin Supreme Court
• Parties: PELOQUIN v. HIBNER et al.

231 Wis. 77

285 N.W. 380

PELOQUIN

v.HIBNER et al.

Supreme Court of Wisconsin.

April 11, 1939.

Appeal from a judgment of the Circuit Court for Sauk County; R. S. Cowie, Judge.

Reversed with directions.

Action commenced July 15, 1937, for damages for the alleged false imprisonment of the plaintiff, the respondent herein. The defendant, Harry Hibner, at the time of the arrest in question, was the sheriff of Columbia County. The defendant, George Hibner, was the undersheriff, and defendant, William Orth, was a deputy sheriff of Columbia County. At the time of her arrest, plaintiff was a married woman living with her husband in the city of Baraboo, in Sauk County. On May 25, 1937, the Bank of Rio, in Columbia County, was robbed. Defendants immediately commenced to investigate said robbery, to apprehend and take into custody the persons who had committed said robbery. On May 29, 1937, defendant, Harry Hibner, was informed by the sheriff of Chippewa County, Wisconsin, by long distance telephone, that the persons suspected of said bank robberry were in the vicinity of Chippewa Falls. The defendant, Harry Hibner, accompanied by two deputies, immediately proceeded to Chippewa Falls, where on that date and the day following, he made further investigation concerning the bank robbery. It appears that Sheriff Pepin of Chippewa County, an undersheriff of said county, and the Chief of Police of Chippewa Falls, all worked with and assisted Sheriff Hibner in the investigation made in Chippewa County. It further appears from the investigation made by the defendants in Columbia County and from the investigation made by the defendants, the sheriff and undersheriff of Chippewa County, and the Chief of Police of Chippewa Falls, that all of them believed that the plaintiff, her husband, Mike Peloquin, and her brother–in–law, William Peloquin, were connected with the robbery of the Rio Bank. The defendant Sheriff had received information that a woman was involved in robbing the bank. Defendant Sheriff further learned that the description of William Peloquin, who had a crippled left hand, answered almost perfectly the description of one of the robbers seen at Rio. It further appears that the Peloquins had been in the vicinity of Chippewa Falls from May 13th to May 17th. There was also information that on one occasion during the period indicated, William Peloquin had remarked in a tavern: “Boys, I am broke now, but I am going in the Southern part of the State and pull a job, and when I come back I am going to have money.” There was also information that on a later occasion and following the bank robbery, when said Peloquins were in Chippewa Falls and vicinity, the plaintiff, Eva Peloquin, had been in certain taverns in Chippewa County and spent some money; that a statement was made by one of the Peloquins: “We are in the money now.”

The defendant Sheriff, while in Chippewa Falls, received information to the effect that the Peloquins would be at a cottage at Shattuck Lake, near Chippewa Falls, on either Saturday, May 29th, or on Sunday, May 30th. Prior to this time, the defendant Sheriff had never heard of the Peloquins. It appears that the sheriff of Chippewa County obtained for Sheriff Hibner and his deputies, a cottage on Shattuck Lake; that the defendant sheriff and his deputies remained in said cottage the night of May 29th. On Sunday morning, May 30th, said defendant and his deputies were joined by the sheriff, undersheriff, and district attorney of Chippewa County, and the Chief of Police of Chippewa Falls. The Peloquins did not appear at the cottage they were supposed to be at, on Saturday night, May 29th. They were not there on Sunday morning, May 30th. Sometime Sunday forenoon, all the officers returned to Chippewa Falls. Sheriff Hibner learned that Eva and Mike Peloquin might be at Baraboo, and that William Peloquin might be located at Washburn. Following receipt of this information, Sheriff Hibner phoned his undersheriff and deputy at Portage, to go to Baraboo and take Eva and Mike Peloquin into custody and return them to Portage. It appears that he also phoned the sheriff at Washburn to take William Peloquin into custody, if he could be located there. Sheriff Hibner testified that when he instructed his undersheriff and deputy to go to Baraboo and take the plaintiff and her husband into custody, he believed from the information he had secured from his investigation up to that time, that all three Peloquins had been involved in the bank robbery. Pursuant to instructions from the defendant Sheriff, the defendant Undersheriff and Deputy Orth went to Baraboo and in company with a deputy sheriff from Sauk County, went to the Peloquin home, arriving there between six and six–thirty, Sunday evening, May 30th. They took the plaintiff and her husband into custody. The defendant officers testified that they asked the plaintiff and her husband if they were willing to accompany them to Portage for questioning and that they both consented. This is denied by the plaintiff. She testified that she was not advised as to where she was to be taken. The defendant Undersheriff and Deputy arrived at the Columbia County jail with the plaintiff and her husband, at about 7:40, Sunday evening. Sheriff Hibner returned from Washburn with William Peloquin, at about six o'clock, Monday evening, May 31st. He arranged immediately for an examination of the plaintiff and her husband and William Peloquin by the District Attorney of Columbia County. Such examinations were conducted, commencing at about seven o'clock on the evening of May 31st. The plaintiff and her husband were detained in the county jail, Sunday night, all day Monday and Monday night. The examinations, conducted by the District Attorney, were taken down in shorthand by a court reporter and in the presence of several witnesses. In connection with the plaintiff's examination, it appears that the District Attorney asked the following question: “Now, we have asked both your husband and his brother this question: Under the law we are required to charge you with some crime if we detain you. We dislike doing that. They have both consented to remain here twenty–four or forty–eight hours while we check and verify the questions we have asked them, and to investigate more fully. Will you consent to do likewise, that is, to stay in the custody of the Sheriff, twenty–four or forty–eight hours, without any warrant being issued, while we investigate this matter.”

It appears that the plaintiff replied: “Certainly.” Upon the trial, while plaintiff admitted that she was asked such question, she denied having made the reply, “Certainly.” The defendant Sheriff testified that he relied fully upon plaintiff's agreement to remain in custody without a warrant being issued, following her questioning. After further investigation, on Tuesday, June 1st, the plaintiff and her husband were released and returned to Baraboo by the Sheriff's department. It appears that they were released from custody sometime between three and three–thirty P. M., and were back in Baraboo at about four P. M. Plaintiff testified that she was not released until about five P. M. on June 1st.

Case was tried to the court and jury. The jury rendered the following special verdict:

Question One: Was the detention of the plaintiff, Eva Peloquin, for the first period of about twenty–four hours, against her will? Answer: Yes. (Two jurors dissenting.)

Question Two: Was the detention of the plaintiff, Eva Peloquin, for the second period of about twenty–four hours, against her will? Answer: Yes. (Two jurors dissenting.)

Question Three: Did the defendant, Harry Hibner, at the time he ordered the detention of the plaintiff, Eva Peloquin, have reasonable grounds to believe that the crime of bank robbery had been committed at Rio, Wisconsin, on May 25, 1937, and that the plaintiff, Eva Peloquin, had participated therein or had known of the plans of others to rob the Rio Bank and had abetted such plans by giving guilty consent thereto? Answer: Yes.

Question Four: Did the defendants, George Hibner, and William Orth, follow and rely on the instructions of Harry Hibner, at the time they took Eva Peloquin into custody on May 30, 1937? Answer: Yes. (Answered by the court.)

Fifth Question: After the plaintiff, Eva Peloquin, had been taken into custody, did the defendants detain her an unreasonable length of time before she was discharged? Answer: Yes.

Sixth Question: At what sum do you assess plaintiff's compensatory damages? Answer: $500.

After verdict both plaintiff and defendants filed alternative motions. Plaintiff's first motion was for judgment upon the special verdict as rendered; second motion was that in the event that her first motion be denied, Question No. Three be stricken from the verdict; third motion was that in the event the first and second be denied, the court change the answer to the third question from, “Yes” to “No”, and for judgment upon the verdict so changed; the fourth motion was that in the event that the first, second and third motions be denied, plaintiff have judgment notwithstanding the special verdict.

Defendants moved: First, for judgment dismissing the complaint on the merits notwithstanding the special verdict; second, in the event the first motion be denied, to change the answer to Question One from, “Yes” to “No”, and to change the answer to Question Two from, “Yes” to “No”, and to change the answer to Question Five from, “Yes” to “No”, and then for judgment on the verdict as amended. Defendants' third motion was that in the event of the first and second motions being denied, a new trial be granted for the following reasons:

(a) Because of error in the form of questions of the special verdict;

(b) Because of error in refusing to submit questions;

(c) Because of error in refusing to submit in the special verdict the following question requested: “After plaintiff had been taken into custody, did the...