Snider v. Wimberly

• Decision Date: 09 February 1948
• Docket Number: 40344
• Parties: Carl Edwin Snider v. Joshua Wimberly, Appellant
• Court: Missouri Supreme Court

209 S.W.2d 239

357 Mo. 491

Carl Edwin Snider v. Joshua Wimberly, Appellant

No. 40344

Supreme Court of Missouri

February 9, 1948

Rehearing Denied March 8, 1948.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Reversed.

Cornelius Roach, Daniel L. Brenner, Wilfred Wimmell and Fred L. Howard for appellant.

(1) The court erred in admitting Exhibit 1, the police report, over the objection of defendant. Martin v. Woodlea Inv Co., 226 S.W. 650; Gass v. United Rys. Co., 232 S.W. 160; White v. Hasburgh, 124 S.W.2d 560; Illinois Power & Light Corp. v. Hurley, 49 F.2d 681; State v. Tarwater, 239 S.W. 480; Thrower v. Life & Casualty Co., 141 S.W.2d 192; O'Donnell v. Wells, 323 Mo. 1170, 21 S.W.2d 762; Muller v. Mutual Benefit, 68 S.W.2d 873, 228 Mo.App. 492; Newkirk v. City of Tipton, 136 S.W.2d 147, 234 Mo.App. 920. (2) The court erred in refusing to permit the witness Raisbeck to testify that that part of the report which stated "Mr. Wimberly stated that he thought the prowler was an ex-employee by the name of Carl Elvin Snider, who lives in Excelsior Springs, Missouri," was untrue. Wright v. John Hancock Mut. Life Ins. Co., 153 S.W.2d 747; Tinsley v. Washington Natl. Ins. Co., 97 S.W.2d 874; Johnson v. Missouri Ins. Co., 46 S.W.2d 959; Sec. 9777, R.S. 1939; Show v. American Ins. Union, 33 S.W.2d 1052; Mack v. Western & Southern Life Ins. Co, 53 S.W.2d 1108; Smith v. Missouri Ins. Co., 60 S.W.2d 730; Smiley v. Bergmore Realty Co., Inc., 73 S.W.2d 836; Truitt v. Natl. Life & Accident Ins. Co., 161 S.W.2d 683; Boehn v. Western Leather Clothing Co., 161 S.W.2d 710; Wigmore on Evidence (3d Ed.), sec. 1348. (3) The court erred in refusing to instruct a verdict for the defendant because: There was no evidence that defendant caused or instigated the arrest of plaintiff. Lark v. Bande, 4 Mo.App. 186; Vimont v. S.S. Kresge Co., 291 S.W. 159; Clark v. Whitaker, 173 S.W.2d 586; State ex rel. Thompson v. Harris, 195 S.W.2d 645; State ex rel. Fireman's Fund Ins. Co. v. Trimble, 294 Mo. 615, 242 S.W. 934; Wade v. Campbell, 211 Mo.App. 274, 243 S.W. 248; Richardson v. Empire Trust Co., 230 Mo.App. 580, 94 S.W.2d 966. (4) The evidence on behalf of plaintiff affirmatively proved that the plaintiff was arrested solely at the instance of the Kansas City Police Department. Mississippi Valley Trust Co. v. Francis, 186 S.W.2d 39; Klatsch v. P.F. Collier & Son Corp., 159 S.W.2d 589; Ritz v. Cousins Lumber Co., 59 S.W.2d 1072; State v. Central Surety & Ins. Corp., 112 S.W.2d 607 Kniezle v. Scott County Milling Co., 113 S.W.2d 817; Costello v. Pitcairn, 116 S.W.2d 257; Becker v. Donohue, 168 S.W.2d 960.

J. M. Loomis, Arthur N. Adams and Arthur N. Adams, Jr., for respondent.

(1) The criminal records of the police department are public documents and admissible in evidence, especially when no proper objection was made. Sec. 6495, R.S. 1929; Priddy v. Boice, 201 Mo. 309, 99 S.W. 1055; Wheeler v. Fidelity & Cas. Co., 298 Mo. 619, 251 S.W. 924; 22 C.J., p. 802; 3 Wigmore on Evidence (2d Ed), sec. 1632, p. 386. (2) The court properly refused to let a police officer testify that part of the police records was inaccurate. Authorities cited above, Point (1). (3) The court did not err in refusing to instruct the verdict for the defendant because: There was sufficient evidence for the case to go to the jury as to who caused, or institgated the arrest of the plaintiff. Jerrett v. St. Francois Co. Finance Co., 185 S.W.2d 855; Thompson v. Fehlig Bros. Box & Lumber Co., 155 S.W.2d 279; Cain v. Cap Sheaf Bread Co., 57 S.W.2d 763; Peterson v. Fleming, 222 Mo.App. 296, 297 S.W. 163; Wright v. Hoover, 241 S.W. 89. (4) The police report showed facts supporting arrest; and the jury could infer from the facts and circumstances who caused, or instigated the arrest. Peterson v. Fleming, 222 Mo.App. 296, 297 S.W. 163; Greaves v. K.C. Junior Orpheum Co., 229 Mo.App. 663, 80 S.W.2d 228; Thompson v. Fehlig Box & Lumber Co., 155 S.W.2d 279.

OPINION

Hyde, J.

Action for false imprisonment based on plaintiff's arrest by the Kansas City police. Verdict for plaintiff for $ 10,000.00 damages. ($ 5000.00 actual and $ 5000.00 punitive.) Defendant has appealed.

Defendant contends that there was no substantial competent evidence to show that he caused plaintiff's arrest and that a verdict should have been directed for him. The occasion for the arrest was that defendant had stopped at his place of business (Superior Distributing Company, selling and servicing refrigerators and radios) about 11:30 p.m. on January 23, 1945, and discovered a man in his office who rushed at him, struck him and escaped by going down on the elevator and out a basement window. Defendant called the police, and his business associate Mr. H. C. Feingold, who arrived on the scene in a few minutes. At the time defendant discovered the prowler, the only light in the office and vestibule was from street lights and a neon sign and he said it was too dark for him to identify the man. Sergeant Raisbeck and Officer Cunningham of the burglary bureau took charge of the case. It seemed apparent from the course taken by the prowler to escape that he was some one familiar with the premises. There had also been previous thefts of refrigerators from the premises which had been reported to the police. Defendant, Feingold, and Raisbeck, all testified that the names of several employees or former employees were suggested who might answer defendant's description of the man he saw, as to height, size and appearance. Plaintiff's name was one of those suggested and plaintiff argues that, because of the subsequent events, it must have been the only one considered. Plaintiff had been employed by the Superior Distributing Company prior to July 1944 but was then operating an electrical service shop in Excelsior Springs.

Later that night, at Raisbeck's request, a State Highway patrolman went to plaintiff's apartment in Excelsior Springs (about 3:00 a.m.), asked him questions, examined his hands, and looked through his car. He also went to the apartment of Francis Overby there to check plaintiff's statement that he had visited there that night. The patrolman reported that although it was a very cold night with a lot of frost, plaintiff's car "was not frosted over as the other cars . . . parked on the same street for any length of time." On the same day, about 9:30 p.m., the patrolman came back and asked plaintiff to go with him to North Kansas City where he was arrested by the Kansas City police and kept in jail until late the next night, about 24 hours. During that time he was put through the show-up room, photographed and finger printed and was accused of stealing refrigerators from the Superior Distributing Company. Before being released, plaintiff gave the police information about an employee of the company, who had tried to sell him refrigerators, which resulted in the conviction of that employee for the thefts. No one else was arrested or investigated, although two other employees were said to have been suggested as answering defendant's description of the man he saw. One of these lived in Kansas City and the other in a nearby Kansas suburb.

Plaintiff offered in evidence a police report on the case of "Snider, Carl Elvin" concerning "Disposition of Arrest" and showing officers involved to be "Sgt. Raisbeck, Ennis, Cunningham." It was marked (in typewriting) "Approved by E. T. Kellerstress, Chief of Detectives" and "Copies furnished to Records B & RD.DD/1 G." It contained the following, under the heading "Details": "At 11:30 p.m. January 23, 1945, we received a radio call to investigate a reported burglary at the Superior Distributing Company, 2307 Pennway, Vi. 1150, and on arrival we met Mr. Joshua Wemberly, Bonner Springs, Missouri. He stated that he stopped by the office on his way home from town to use the rest room. While in the building, he was surprised by a prowler who had evidently entered the building by the front door after Mr. Wemberly had entered. The prowler hit Mr. Wemberly on the jaw and escaped by jumping through the basement window glass. Mr. Wemberly stated that he thought the prowler was and ex-employee by the name of Carl Elvin Snider, who lives in Excelsior Springs, Missouri. We had the Missouri State Highway Patrol pick up Snider at his home, 1-24-45 and bring him to K.C. where he was booked. After questioning him and checking on his story it was evident that he was visiting friends in Excelsior Springs, at the time in question. He was released 1-26-45." (Our italics.)

Defendant objected to the admission of the italicized part of the report on the grounds that Sgt. Raisbeck would testify that no such statement was made by defendant and that it was hearsay. Raisbeck said that the report was copied by a police stenographer from his longhand copy, which he said did not contain this purported statement of defendant. Neither of the other officers whose names appear on the report testified so there is no showing as to how it got into the report. Defendant relies on the ruling of inadmissibility of statements in a similar report, considered by the Kansas City Court of Appeals in White v. Hasburgh, (Mo App.), 124 S.W.2d 560; and also Martin v. Woodlea Inv. Co., 206 Mo.App. 33, 226 S.W. 650; Gass v. United Rys. Co., 232 S.W. 160; and State v. Tarwater, 293 Mo. 273, 239 S.W. 480. [See also Luhan v. Slavik, 185 N.Y.S. 878.] (It was not shown in this case, as in the White case, that this report was required by the rules of the Kansas City Police Department.) There is a well established exception to the hearsay rule admitting official reports made by an officer on the basis of his own personal investigation and knowledge, at least when required by statute, ordinance, rule or regulation. [5 Wigmore on Evidence...