Peterson v. Fleming

• Decision Date: 27 June 1927
• Docket Number: No. 16028.,16028.
• Citation: 297 S.W. 163
• Parties: PETERSON v. FLEMING et al.
• Court: Missouri Court of Appeals

297 S.W. 163

PETERSON v. FLEMING et al.

No. 16028.

Kansas City Court of Appeals, Missouri.

June 27, 2007.

Rehearing Denied July 11, 1927.

Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge.

Action for false arrest and malicious prosecution, brought by A. C. Peterson against Fred W. Fleming and another, as receivers of the Kansas City Railways Company. From a judgment for plaintiff, defendants appeal. Affirmed.

Chas. L. Carr, of Kansas City, Ben L. White, of St. Louis, and E. E. Ball, of Kansas City, for appellants.

J. Prescott Brown and Darius A. Brown, both of Kansas City, for respondent.

ARNOLD, J.

This is an action in damages for alleged false arrest and malicious prosecution. At the time of the occurrence out of which this action grew, defendants were the duly appointed and acting receivers of the Kansas City Railways Company.

On June 27, 1924, between midnight and 1 o'clock a. m., employees of defendants in charge of a tower truck were crossing the Paseo on Ninth street going west, at a speed estimated at 15 to 20 miles per hour. The night was dark and rain was falling. The Paseo is a wide avenue running north and south, and crosses Ninth street at right angles. The Paseo at the point of intersection had a parkway about 40 feet in width running down its center. The distance from the west line of said parkway to the west curb line of the Paseo is about 40 feet. The crew in charge of the tower truck, at about the time they reached the east line of the parkway, saw an automobile coming from the north between Eighth and Ninth streets, the distance between Eighth and Ninth streets being approximately 200 to 250 feet; the auto being about midway between the two streets when first seen by the truck crew, and was being run on a slight down grade at about 20 miles per hour, as shown by plaintiff's evidence. It was occupied by plaintiff, who was driving, three ladies and another man, one of the ladies occupying the front seat with the plaintiff.

The truck proceeded across the west side of the Paseo, and before it had succeeded in crossing, the automobile driven by plaintiff struck it at or near the rear right wheel, and knocked or slid it some distance to the southwest, causing it to strike the south curb on Ninth street and turn over against an electric light pole, which was broken by the impact. Plaintiff and one Edward Hanson, the other man in the automobile, aided in extricating one of the defendants' employees from the wrecked truck under which he had been pinned.

Within a short time after the accident two uniformed police officers of Kansas City, Mo., arrived on the scene, one of whom asked who had been driving plaintiff's car, and plaintiff answered that he was. The officer then asked his name and address, which were given, together with the names and addresses of the other occupants of the automobile. Testimony in defendants' behalf is to the effect that one of the policemen told plaintiff that he wanted him and for him not to go away. The testimony in this regard is to the effect: That plaintiff asked the officer what he thought of the accident. The said officer thereupon asked plaintiff some questions involving the direction he was going, how fast he was driving, to which last indicated question plaintiff answered, "about 20 miles an hour." The officer, testing the oily, wet boulevard with his foot, said, "I don't know, I don't see how those fellows have a chance," pointing to the crew of the truck. That plaintiff then asked if he (plaintiff) were going to be arrested, and the officer told him, "No." The officer then directed plaintiff to have his car towed to a garage of his own choosing. Plaintiff's companion, Hanson, was present at this conversation. Plaintiff's testimony shows the police officers were pleasant and offered to help the party in any way possible.

Shortly thereafter an inspector and special officer of the railway company arrived on the scene. It appears that the said special officer talked some 10 or 15 minutes with the city police officer, out of hearing of the plaintiff, and at the end of said conversation the policeman walked over to plaintiff, and in a rough manner said, "Where is the guy that was driving that car?" Plaintiff said, "Right here." The policeman then said in a loud, gruff voice, "I am going to have to take you to the station."

It appears that at about this juncture, the tow car which the plaintiff had ordered arrived. The police officer then said, "You can't take this car. This man is under arrest, and this car is going to be the property of the city as long as this man is under arrest, so it will have to go to the Down Town Garage."

It further appears from plaintiff's testimony that, after the conversation between the policeman and defendants' special officer, the demeanor of the policeman toward plaintiff changed from one of pleasant courteousness to one of harshness. To use plaintiff's expression, they became "hard-boiled"; that they treated him roughly, grabbed him by the arm, taking him to where the police car was standing. Plaintiff asked if the other fellows would be taken down also, to which the police officer replied, "No; that other officer will take care of them," pointing to defendants' special officer.

A large crowd gathered at the scene, and jeered and laughed at plaintiff as he walked across the street, the policeman holding him by the arm. It appears that plaintiff had never before been arrested; he was 31 years of age and had been in the employ of the Kansas City Elevator Manufacturing Company since 1911, with the exception of one year when he was in the World War; that he lived with his mother and sister. It appears that plaintiff's companion, Hanson, went with plaintiff to police headquarters for the purpose of signing plaintiff's bond.

On arriving at the police station, plaintiff was searched, his personal effects taken from him, and he was locked in a room therein; that the room was filthy, and plaintiff was neither permitted to give bond nor communicate with relatives or friends; that the plaintiff's treatment by the police and booking officers was one of extreme harshness and discourtesy. Plaintiff was informed that he was being held "for investigation," and would not be permitted to give bond. The evidence shows that, when Hanson suggested be would sign plaintiff's bond, he was told by a police sergeant, "You get the hell out of here, or I will lock you up too." Plaintiff was then placed in a room, into which other prisoners were thrust, from time to time. The room was filthy and filled with a stench.

Plaintiff testified that, at about 8 a. in. on the following day, he was roughly taken by an officer and placed in the "show-up" room, which is explained to be a place where prisoners are viewed by detectives and others with the purpose of determining whether the person so viewed is a criminal of record within the knowledge of the viewers. The "show-up" room is so arranged that the supposed culprit is in a strong light, while those viewing him are in semidarkness and hidden behind screens. After plaintiff had stood within this room for several minutes, an officer standing outside the window asked his address, where he worked, and how long, if he drank, if he had ever been arrested, and if he was in the accident at Ninth and Paseo with a truck belonging to the street railway company. He was then informed he had been arrested the night before, charged with careless driving. Plaintiff was then jerked, by an officer who had been holding plaintiff's arm, around the "show-up" room two or three times, and then returned to the cell. After the lapse of an hour, he was taken to a smaller room, where there were two drunken men asleep on the floor; that after a lapse of 20 or 30 minutes, plaintiff was taken into police court before Judge Kilroy, and while plaintiff was being questioned, a man engaged Judge Kilroy in conversation, after which the judge said to plaintiff, "Your case is continued until July 8th," on which date plaintiff again appeared in police court for trial. It is in evidence that during the trial one John Moberly, one of defendants' regular attorneys, appeared and examined the witnesses. Judge Kilroy asked Moberly who he was, and Moberly replied, "I am representing the street railway company," whereupon the judge said: "Well, this case looks like an inevitable accident. One is just as much to blame as the other. The case is dismissed."

It is in evidence that, for a period of two months after the arrest, friends and associates of plaintiff would comment to him about the matter and "razz" and jeer him, and even up to the time of the trial of this case, some of the plaintiff's acquaintances would say to him, "How is the old jail bird getting along?"

It appears also that four of the defendants' witnesses testified that they had met with one James Pollard, with whom they had talked the matter over, and he told them they would be called as witnesses, to protect the railway company; that they went over the matter together, with Pollard and in the presence of each other. The materiality of this evidence will appear in the consideration of the points raised in the appeal.

The petition charges:

"* * * The defendants, through their agents, servants, employees, and officers maliciously intending to injure the plaintiff in his good name and reputation, maliciously and falsely and without probable cause whatsoever, at their own instance, caused and procured the plaintiff to be charged with the offense of investigation; that pursuant to the action and conduct of defendants through their agents, servants, employees, and officers in so falsely and maliciously and without probable cause causing plaintiff to be charged with said offense, plaintiff was arrested by the police officers of Kansas City, Mo., and was by said police officers incarcerated in the jail at police headquarters in said city at about 1:30 a. m. on...