Ryan v. Conover

• Citation: 59 Ohio App. 361,18 N.E.2d 277
• Parties: RYAN v. CONOVER et al.
• Decision Date: 12 December 1938
• Court: United States Court of Appeals (Ohio)

18 N.E.2d 277

59 Ohio App. 361

RYAN v. CONOVER et al.

Court of Appeals of Ohio, First District, Hamilton.

December 12, 1938

Ginocchio & Ginocchio, of Cincinnati, for appellant.

Cohen Mack & Hurtig, of Cincinnati, for appellees.

MATTHEWS Judge.

The Court of Common Pleas of Hamilton county instructed the jury to return a verdict for the defendants upon the plaintiff's opening statement. Judgment was rendered upon this verdict, and this appeal on question of law is from that judgment.

The action is against the deputy marshal of the village of Mason and the surety upon his bond.

The allegations of the petition are that the defendant Conover 'acting in his capacity of deputy marshal' halted the plaintiff on the state highway south of the village for an alleged violation of a municipal ordinance and made an unlawful demand upon him for $5, as cash bond for his appearance four days thereafter in the mayor's court. The plaintiff refused to furnish the bond but promised to appear at the time and place specified. This was not satisfactory to the officer. The plaintiff proceeded on his way and the officer followed him and finally drew alongside and displaying a pistol threatened to shoot plaintiff's tires unless he stopped. The plaintiff then 'in fear of his life' stopped 'his car and descended therefrom, and defendant Conover in the presence of divers and sundry good people, did proceed to abuse and bully plaintiff to his great embarrassment and extreme humiliation.'

The allegations proceed, and show that Conover was joined by another deputy marshal and that they forced the plaintiff to accompany them back to the village where the 'defendant Conover maliciously, without cause, and with intent to harass plaintiff filed an affidavit charging plaintiff with reckless driving, speeding and resisting arrest.' The petition closes with a recital of the damages resulting. It does not disclose what disposition was made of the charges made against the plaintiff.

The opening statement of the plaintiff to the jury makes clear what was obscure in the petition, namely, that the plaintiff was operating an automobile at the time and that the deputy marshal was on a motorcycle, that he overtook the plaintiff after he had gotten a short distance beyond the village and required him to stop, and then told him he had violated a traffic law while passing through the village and that 'You will have to give me five dollars cash bond to secure your presence here Saturday morning.' While the statement is rather vague at this point, it is clear that the plaintiff refused to deposit the cash bond, but expressed a willingness to appear at the trial, and, as the defendant Conover would not consent to that, the plaintiff drove off pursued by Conover. Finally, the plaintiff submitted and was taken before the mayor where he gave bond for his appearance. At the trial he pleaded guilty and was fined $10 and costs.

Now the question is whether the opening statement, in the light of the allegations of the petition, shows any cause of action.

While the plaintiff alleged in his petition that he was put in fear, there is nothing in the opening statement on that subject and the circumstances set forth are not such as would cause reasonable fear of immediate physical violence. There was, then, no cause of action for assault shown, and, as there was no claim that there was any touching of the person of the plaintiff, no cause of action for a battery was presented.

As the plaintiff pleaded guilty to the charge made against him by the defendant Conover, the plaintiff's claim in this action cannot be sustained as an action for malicious prosecution.

The case must be sustained, if at all, as an action for false arrest, followed by false imprisonment during the interval between arrest and the issuance of the warrant at his appearance before the mayor on the same morning. Can it be sustained upon that theory?

The case bears many points of resemblance to that of Drolesbaugh v. Hill, 64 Ohio St. 257, 60 N.E. 202 but that case was decided upon demurrer to the petition in which an assault and battery were clearly alleged. The court held that the petition stated a cause of action against the constable and his surety, the court saying in the syllabus that:

'The sureties on the bond of an officer, conditioned for the faithful discharge of his duties, are liable thereon to the party injured, where, under color of his office in making an arrest with or without warrant, and without probable cause, he uses more force and violence than is necessary.'

And at page 265, 60 N.E. at page 203, in the opinion of the court it is said:

'He may have made the arrest upon view, and have used no more force than was necessary. If such is the case, he and his sureties may defend themselves by setting up the facts in an answer. The petition, therefore, makes a case.'

In the case at bar, on the contrary, no more force than necessary was used to make the arrest and no liability is shown unless it appears that there was no right at all to make the arrest.

An officer may arrest a person when circumstances exist that would cause a reasonable person to believe that a crime has been committed in his presence. Section 13432-1, General Code; Bock v. City of Cincinnati, 43 Ohio App. 257 183 N.E. 119; 6 Corpus Juris, Secundum, 595; 3 Ohio Jurisprudence 140, Section 11. And this is true even though no offense has actually been committed. Consequently no civil liability attaches to him on account thereof in either circumstance. 3 Ohio Jurisprudence 176, Section 41. And in order to make the arrest he may pursue the person into any part of the state. Section 4386, General Code. When the arrest is for violating a traffic law and a judicial officer is not accessible, the arresting officer may take a cash deposit...