Radloff v. National Food Stores, Inc.
| Decision Date | 10 October 1963 |
| Citation | 123 N.W.2d 570,20 Wis.2d 224 |
| Parties | Alma RADLOFF et al., Respondents, v. NATIONAL FOOD STORES, INC., a foreign corporation, Appellant. |
| Court | Wisconsin Supreme Court |
Jack Gimbel, Milwaukee, for plaintiff-respondent.
James C. Schalow and Daniel L. Costello, Milwaukee, for defendant-appellant.
Plaintiffs call attention to our statement that the store employees had no right to arrest the shoplifter because the alleged crime was a misdemeanor, and to the implication therein that a person not an officer is not permitted to arrest without warrant for any misdemeanor. They point out correctly that under the common law a person not an officer was permitted to arrest without warrant for a misdemeanor constituting a breach of the peace and committed in his presence. 1
We find no Wisconsin decision dealing with this principle. 2 It appears that it is still in force in this state.
The authorities differ with regard to the types of activity which constitute a breach of the peace under this rule. 3 An affray or assault involves violence and is quite obviously a breach of the peace. But in Tennessee it has been held that unlawful sale of liquor is a breach of the peace. 4
Cases dealing with arrest by a person not an officer for shoplifting have reached opposite results, but have not discussed whether or not shoplifting constitutes a breach of the peace under the common-law rule. 5
We conclude that as a matter of policy the authority of a person not an officer to arrest for a misdemeanor committed in his presence should be limited to instances where the public security requires it, that is to acts which involve, threaten or incite violence. We do not consider the misdemeanor, theft, a breach of the peace in this sense.
We note that both houses of the present legislature passed a bill authorizing a merchant or his employee having probable cause for believing that his goods have been unlawfully taken to detain the suspect for a reasonable length of time, not to exceed 30 minutes. Governor Reynolds vetoed the bill because of the possible intrusion on the rights of individuals who might, in fact, be innocent. 6
Motion for rehearing denied, without costs.
1 5 Am.Jur. (2d), Arrest. p. 727, sec. 35: 6 C.J.S. Arrest, § 8c, p. 607; 1959 Wisconsin Law Review 489, 518.
2 The two cases cited in our original opinion dealt directly with cases where an officer arrested without warrant for a misdemeanor not committed in his presence. Stittgen v. Rundle (1898), 99 Wis. 78, 74 N.W. 536; Gunderson v. Struebing (1905), 125 Wis. 173, 104 N.W. 149. The present rule with respect to arrest by an officer without warrant for a misdemeanor is found in sec. 954.03(1), Stats.
5 Shoplifting being a misdemeanor, arrest was not authorized. Fitscher v. Rollman & Sons Co. (1929), 31 Ohio App. 340, 167 N.E. 469; Szymanski v. Great A & P Tea Co. ...
To continue reading
Request your trial
-
Meihost v. Meihost
...(1963), 20 Wis.2d 284, 291, 121 N.W.2d 753. See also Radloff v. National Food Stores, Inc. (1963), 20 Wis.2d 224, 121 N.W.2d 865, 123 N.W.2d 570; Wisconsin Power & Light Co. v. Columbia County (1962), 18 Wis.2d 39, 117 N.W.2d 597; Mondl v. F. W. Woolworth Co. (1961), 12 Wis.2d 571, 107 N.W.......
-
State v. Slawek
...291 N.W.2d 498, 501 (1980). In Barrett, the court cited Radloff v. National Food Stores, 20 Wis.2d 224, 237(a)-(b), 121 N.W.2d 865, 123 N.W.2d 570, 571 (1963) (on reconsideration), for the proposition that an off-duty officer in another county can make a lawful arrest when he or she witness......
-
Ward v. West
...Tea Co., 240 So.2d 157 (Fla.App.1970); Radloff v. National Food Stores, Inc., 20 Wis.2d 224, 121 N.W.2d 865, rehearing denied, 20 Wis.2d 224, 123 N.W.2d 570 (1963); Knight v. Powers Dry Goods Co., 225 Minn. 280, 30 N.W.2d 536 (1948); and Martin v. Piggly-Wiggly Corp., 469 So.2d 1057 To supp......
-
State v. Smith
...125 Wis. 173, 104 N.W. 149, and Allen v. State (1924), 183 Wis. 323, 197 N.W. 808.6 (1963), 20 Wis.2d 224, 237a, note 2, 121 N.W.2d 865, 123 N.W.2d 570.7 (1897), 95 Wis. 492, 70 N.W. 483.8 Id. at pages 498, 499, 70 N.W. at page 485. It should perhaps be noted that this case involved a breac......
-
State legislators not immune from criminal arrest.
...or the threat of violence, applying the modern day interpretation of "breach of the peace." Radloff v. National Foods Stores, Inc., 20 Wis.2d 224, 123 N.W.2d 570 In Radloff, a store was sued for injuries incurred when employees attempted to arrest a shoplifter. The Supreme Court held that s......