State of Missouri v. Fidelity & Deposit Co.

• Decision Date: 17 January 1950
• Docket Number: No. 13968.,13968.
• Citation: 179 F.2d 327
• Parties: STATE OF MISSOURI ex rel., and to Use of Ward, v. FIDELITY & DEPOSIT CO. OF MARYLAND.
• Court: U.S. Court of Appeals — Eighth Circuit

179 F.2d 327 (1950)

STATE OF MISSOURI ex rel., and to Use of Ward, v. FIDELITY & DEPOSIT CO. OF MARYLAND.

No. 13968.

United States Court of Appeals Eighth Circuit.

January 17, 1950.

J. Grant Frye, Cape Girardeau, Mo., for appellant.

James A. Finch, Cape Girardeau, Mo., (James A. Finch, Jr., Lehman Finch, Freeland L. Jackson, Finch & Finch, Cape Girardeau, Mo., and James V. Conran, New Madrid, Mo., on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

GARDNER, Chief Judge.

This was an action brought by Donald Ward, a minor by his next friend, upon the official bond of the Sheriff of New Madrid County, Missouri, seeking to recover damages for an alleged false arrest. It was alleged in plaintiff's complaint that Robert Hartzell Kimes, the sheriff of New Madrid County, Missouri, kidnapped plaintiff, arrested him without warrant and without reasonable grounds therefor, held him in custody without authority at law, falsely accused him of crime, assaulted and beat him, threatened to throw him in the river and drown him, and kept him in custody without adequate food and water and without medical attention. It was also alleged that plaintiff received certain described permanent wounds and injuries to his head; that he was rendered sick and confined to the hospital, his general health was impaired, and that he suffered anguish of mind and was greatly humiliated and disgraced. He asked judgment in the amount of $15,000.00.

The defendant Fidelity and Deposit Company of Maryland answered, admitting the execution of the official bond for the sheriff, admitting that plaintiff was a minor, and in substance denying all other material allegations of the complaint. The principal in the bond, Robert Hartzell Kimes, Sheriff, was not named as defendant in the action as brought but on application he was permitted to intervene and he filed answer, putting in issue the material allegations of the complaint.

Prior to trial of the action plaintiff was permitted to strike from his complaint the claim for damage with respect to humiliation and disgrace and injury to his reputation as a citizen. The action was tried to a jury. Plaintiff did not at the close of all the evidence move for a directed verdict in his favor and the jury returned a general verdict in favor of the defendant upon all the issues. From the judgment entered upon that verdict plaintiff prosecutes this appeal.

It is somewhat difficult to ascertain from plaintiff's brief just what particular rulings of the court are relied upon as erroneous because the "Points to be Argued" deal with general principles of law rather than with concrete rulings of the trial court. Thus in Point 1 it is stated that, "Under Sections 4435 and 4445 of Revised Statutes of Missouri for 1939 Mo.R.S.A. burglary is a felony. Under Section 3857 of such statutes, a Missouri Sheriff may arrest a person for a felony on a warrant issued by the County Magistrate; or he may arrest without a warrant if he has personal knowledge of the felony or has reliably reported facts connecting the person arrested specifically with a freshly committed felony. Otherwise the arrest and detention are illegal."

In Point 2 it is alleged that Federal Courts should follow the rules of evidence and substantive law laid down by the decisions of the Supreme Court of Missouri. In Point 3 it is alleged that the Sheriff had no facts connecting appellant with the burglary in question. In Point 4 it is said that if there were facts sufficient to authorize plaintiff's arrest and detention by the Sheriff, the court should have determined whether or not the act of the Sheriff in arresting plaintiff was based upon reasonable grounds and probable cause. The other points are also argumentative rather than specific assignments of error. As there was no motion for the direction of a verdict in favor of the plaintiff, it is impossible to determine to what specific rulings of the court these assignments have reference.

Plaintiff requested the court to instruct the jury as a matter of law that the arrest in controversy was "without any lawful reason or ground therefor." Other requested instructions went largely to the question of damages. While the record does not specifically show that these requested instructions were denied we think it may be fairly inferred that they were. At the close of the court's instructions as given, the parties were given opportunity to take their exceptions, whereupon the following occurred:

"The Court: Exceptions by the plaintiff. Do you have any?

"Mr. Frye: Yes. Plaintiff excepts for failure to charge the jury as a matter of law that the arrest itself was unjustifiable and not warranted, as being no probable cause, no specific facts connecting plaintiff at all with the burglary of the Green home, was never in possession of property.

"The Court: Anything else?

"Mr. Frye: Yes, and then, if the court won't give that instruction, we except to leaving it to the jury, on the reasonable ground for arrest. I believe the Court used something like this in the charges: that if he had — that if the sheriff had sufficient information, and a reasonable ground and acted in good faith to get evidence, that the arrest would be justifiable. We will except to that, or whatever was said in that connection, that that would give the jury a roving commission, and that the Court should hypothesize specific facts upon which the jury must pass in such finding.

"The Court: Well, have you finished that?

"Mr. Frye: Yes.

"The Court: The Judge of this court, before arguments and at the time I was commenting on instructions, indicated to counsel that he would welcome such an instruction (one hypothesizing specific facts) as counsel has now taken an exception to the failure of the Court to give and counsel did not supply the Court with any such instruction, and therefore, the Court did the best that he could, and feels like that he followed the law.

"Mr. Frye: And the reason, your Honor, we did not submit such an instruction was that we can conceive of no fact specifically connecting the boy with the burglary, and for that reason we did not offer such."

In the absence of a motion for directed verdict the plaintiff here is confined to two classes of alleged error: (1) error in the giving or refusing to give instructions, and (2) error in the court's rulings as to the admissibility of evidence. In the final analysis the only complaint to the instructions was that the court failed to charge the jury as a matter of law that the arrest was without probable cause and unwarranted, and further that the court failed to hypothesize specific facts upon which the jury were required to pass in determining whether the arrest was without probable cause. This last contention may at once be disposed of because it appears that the court invited counsel to prepare and propose such an instruction and this counsel declined to do so that the only remaining question is whether or not the court should have instructed the jury as a matter of law that the arrest was without probable cause and unwarranted. The court instructed the jury, inter alia, as follows:

"Sheriff Kimes is a peace officer. He was in March, 1948, and as such is charged with the duty of aiding the enforcement of the criminal law by ferreting out and apprehending those who may commit any offenses against the criminal laws of the State of Missouri and his county; and it is his duty to the State of Missouri and his county; and it is his duty to make investigations to provide the proof of guilt of persons when a felony has been committed; and under the law in Missouri, the breaking and entering of a dwelling of another, with intent to steal, take and carry away any personal property of value therein, is burglary; and likewise, the stealing of personal property of another, of a value of more than $30.00 is grand larceny; and both burglary and grand larceny are felonies under the laws of this state. If any peace officer — this is referring to the sheriff — has reasonable ground to believe that a felony has been committed within his jurisdiction, it is his duty, under the law, to arrest and take into custody any person he has reasonable grounds to suspect may be guilty thereof, and this he may do without a warrant or without any complaint having been filed against the person so arrested. Under the statute, when a peace officer arrests without a warrant, on the suspicion that the person arrested has committed a criminal offense, the person so arrested must be discharged within twenty hours after his arrest, unless a charge be entered against him — the person so arrested — charging a criminal offense.

"If you find and believe from the evidence in this case that on or about the 17th of March, 1948, the home of Mr. and Mrs. Homer Green, in Matthews, Missouri, was broken into, with the intent on the part of the person so breaking and entering it to steal, take and carry away any personal property of value therein; or if you find that on said date personal property of Mr. and Mrs. Homer Green of the value of $30.00 was stolen from their home, then the said Kimes, as sheriff of said county, not only had the right, but it was his duty to arrest and take into custody without a warrant any person he had reasonable ground to suspect had committed the offense. And if you find from the evidence that the defendant Kimes, as Sheriff under all the facts and circumstances shown in evidence, had reasonable ground to believe that the offense had been committed, and reasonable ground to believe that Donald Ward had committed the offense, the arrest and detention in the county jail of Donald Ward, if it was not more than twenty hours, was lawful, and such arrest and detention in the county jail under these circumstances was not a violation of his official bond, and you can not find any sum against the defendant for the arrest of Donald Ward.

"Now,...