Rustici v. Weidemeyer

• Citation: 673 S.W.2d 762
• Decision Date: 19 June 1984
• Docket Number: No. 65672,65672
• Parties: John RUSTICI, Sr., Plaintiff-Appellant, v. Richard WEIDEMEYER, et al., Defendants-Respondents.
• Court: United States State Supreme Court of Missouri

Page 762

673 S.W.2d 762

John RUSTICI, Sr., Plaintiff-Appellant, v. Richard WEIDEMEYER, et al., Defendants-Respondents.

No. 65672.

Supreme Court of Missouri En Banc.

June 19, 1984.

On Rehearing July 17, 1984.

Ed Dougherty, G. Spencer Miller, Kansas City, for plaintiff-appellant.

Kenneth O. Smith, James Welsh, Aaron A. Wilson, Michael W. Bradley, Jeffrey Hess, William Randall Williams, Thomas B. Sullivan, III, Manfred Maier, Kansas City, for defendants-respondents.

GUNN, Judge.

Plaintiff-appellant appeals from the trial court's directed verdict in favor of all defendants on his petition for false arrest and malicious prosecution arising out of the issuance and nonpayment of a parking violation on a shopping center parking lot.

Plaintiff filed suit for false arrest against two officers on the Kansas City police force, one of whom was employed as a private security guard during off-duty hours by the Metro North Shopping Center. The action for false arrest included the owners of the shopping center. In his comprehensive cause of action, plaintiff also charged the security guard and shopping center officers with malicious prosecution. The suit further asserted a claim under 42 U.S.C. § 1983 (1976) against the two police officers and the City of Kansas City for alleged deprivation of civil rights.

The trial court granted defendants' motion for directed verdict, and on appeal, the Western District of the Court of Appeals affirmed. This court granted transfer. Considering the case as an original appeal, Rule 83.09, we affirm in part and reverse in part.

At the outset, it should be specifically noted that this case turns on the necessity of a warrant by a municipal police officer making an arrest outside his jurisdiction for a violation of a municipal parking ordinance under the particular circumstances presented. The primary holding of this case deals only with municipal ordinance violation and arrest pertaining to such.

The panoramic question presented by this appeal is whether the trial court erred in directing a verdict in favor of defendants at the close of plaintiff's evidence. It follows that this Court must consider the evidence and all the reasonable inferences therefrom in the light most favorable to plaintiff in order to determine whether plaintiff made a submissible case against any of the defendants under any of the theories presented in his petition. National Garment Co. v. City of Paris, 655 S.W.2d 515, 516 (Mo. banc 1983).

Plaintiff's arrest came about as the result of a parking ticket issued by an off-duty Kansas City police officer, Steven Hebauf.

Officer Hebauf was working as a security guard for Metro North Shopping Center, and his duties included issuing tickets to illegally parked vehicles which were blocking fire lanes. One such ticket was issued on April 13, 1979 to a two-door Chevrolet. On the face of the ticket, Hebauf wrote down a description of the vehicle, including the license tag number, as well as the number of the ordinance which had been violated. Plaintiff does not contend that any of this information was erroneous, but he does base his case in large measure on the fact that Hebauf did not fill in the name of the owner of the vehicle.

Under standard operating procedure, presumably followed in this case, a copy of the ticket was left on the vehicle and another copy was sent to the Kansas City municipal court. There, employees of the Court Administrator's office attempted to discover the name of the owner of the vehicle through a search of the computer records of the Department of Revenue. Two such attempts were made, both of which were unproductive. However, a subsequent inquiry to the motor vehicle bureau in North Kansas City was more successful. On the basis of information supplied by that office, the name "John Rustici" and the address "1103 N.E. Cowden, Gladstone, Mo." were added to the ticket. All of the information pertinent to the ticket was placed in the computer files of the municipal court.

A check of the computer records of the Department of Revenue prior to trial revealed two licensed drivers having the name John Rustici, one born in 1924 and the other born in 1959. The two Rusticis were father and son, and each resided at the same Gladstone address. These computer records were available to the computer section of the Municipal Court Administrator's office, and one of the employees of that section apparently entered "1924" in the computer as the birthdate of the John Rustici named in the parking ticket. The computer employed by the municipal court is programmed to automatically generate an entry stating that a warrant has issued with respect to a given parking ticket when that ticket has remained unpaid for a certain length of time.

On September 23, 1979, by happenstance Gladstone police officers were called to investigate some acts of vandalism at Mr. Rustici's house. A routine check revealed to Gladstone police that John Rustici was the subject of a Kansas City warrant for an unpaid parking violation, and plaintiff was informed of that fact. The Gladstone police contacted the Kansas City police, and defendant Richard Weidemeyer, a Kansas City police officer, was dispatched to the scene. Upon Weidemeyer's arrival, plaintiff informed him that a mistake had been made, that he did not drive a car fitting the description on the parking ticket and that he and his son bore the same name. The officer did not talk to any other member of plaintiff's family but did check to determine that the warrant was issued to a John Rustici born in 1924.

Mr. Rustici was taken to a Kansas City police station where he posted a $25.00 appearance bond and was released. The case against him was ultimately dismissed, and he brought this action.

Plaintiff's second amended petition is in three counts. Count I asserts a claim of false arrest against the owners of the shopping center and the two Kansas City police officers, Hebauf and Weidemeyer. Count II pleads a cause of action for malicious prosecution against the same defendants. Count III seeks to hold the two police officers and the city of Kansas City liable for depriving plaintiff of his civil rights under § 1983, supra. The trial court directed a verdict at the close of plaintiff's case in favor of all defendants on all counts.

As a preliminary point, plaintiff contends that the trial court erred in directing a verdict in favor of the shopping center owners and the police officer (Hebauf) employed by them on Counts I and III, arguing that these defendants failed to request a verdict on those counts in their motion. The only authority cited by plaintiff for this proposition is Rule 72.01, which states in pertinent part that "[a] motion for directed verdict shall state the specific grounds With respect to the merits, plaintiff contends that a submissible case of false arrest was made against the shopping center owners and the officer employed by them. Plaintiff's case is, of course, founded on the effect that the issuance of the parking ticket had on the fact of his ultimate arrest. Plaintiff places much emphasis on his argument that the issuance of the ticket served to "instigate" that arrest. However, this argument is misdirected.

                therefore."   Nothing in Rule 72.01 prohibits a trial court from entering a directed verdict without motion when it is merited.  The authority of trial courts to direct a verdict where there is no material issue of fact for the jury to decide "is part of the inherent power of the court, which is charged with the duty of determining questions of the law."  Home Trust Co. v. Josephson, 339 Mo. 170, 95 S.W.2d 1148, 1155 (banc 1936).  The general rule which we follow is that a trial court "may, in a proper case, direct a verdict at its own instance without any request therefor having been made by either party."   88 C.J.S., Trial § 249 (1955)
                

The essence of the cause of action of false arrest, or false imprisonment, "is the confinement, without legal justification, by the wrongdoer of the person wronged." Warrem v. Parrish, 436 S.W.2d 670, 672 (Mo.1969); Patrich v. Menorah Medical Center, 636 S.W.2d 134, 138 (Mo.App.1982). A person may also be liable for false arrest if he does not actually confine the plaintiff but merely instigates it, as in the case of providing information on the basis of which a subsequent unlawful arrest is made. See, e.g., Smith v. Allied Supermarkets, Inc., 524 S.W.2d 848 (Mo. banc 1975); Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239 (1948). However, justification is a complete defense to the cause of action, and this applies equally as well to the person who merely instigates an arrest as to one who actually effectuates it. In the former context it has been held that "[i]f one merely states the facts to an officer, leaving it to him or his superior to act or not as they see fit, he is not liable for a false arrest made by the officer." Greaves v. Kansas City Junior Orpheum Co., 229 Mo.App. 663, 80 S.W.2d 228, 237 (1935); accord, Vimont v. S.S. Kresge Co., 291 S.W. 159, 160 (Mo.App.1927).

While such a rule is more commonly addressed to the question of whether certain conduct rose to the level of instigation, there is within the statement the germ of another rule: a person may not be held liable for stating the truth to one who ultimately effects another's arrest. See Vimont. There can be no better, nor more complete justification for someone alleged to be the instigator of an arrest than that he simply told the truth. In this case, the officer (Hebauf) who issued the ticket did no more than report a true description of an illegally parked car to those whose power and authority it was to enforce the infraction against the party properly responsible. He did not identify the offending party, and he certainly did not attempt to distinguish the elder Rustici from the younger. Nothing in plaintiff's evidence detracts from this conclusion that the acts of Officer Hebauf were...