State v. Collins

• Decision Date: 08 June 1943
• Docket Number: No. 26251.,26251.
• Citation: State v. Collins, 172 S.W.2d 284 (Mo. App. 1943)
• Parties: STATE ex rel. PATTERSON v. COLLINS et al.
• Court: Missouri Court of Appeals

172 S.W.2d 284

STATE ex rel. PATTERSON v. COLLINS et al.

No. 26251.

St. Louis Court of Appeals. Missouri.

June 8, 1943.

Rehearing Denied July 2, 1943.

Appeal from Circuit Court, Audrain County; Frank Hollingsworth, Judge.

"Not to be reported in State Reports."

Action by the State, at the relation of Clarence Patterson, against Harold J. Collins and others, as state highway patrolmen, and sureties on their bonds, for false imprisonment of relator. Judgment for defendants, and plaintiff appeals.

Reversed and remanded.

D. M. Cuthbertson, of Fulton, for appellant.

Roy McKittrick, Atty. Gen., and Lawrence L. Bradley, Asst. Atty. Gen., for respondents.

BENNICK, Commissioner.

This is an action against three Missouri state highway patrolmen and their sureties based upon the charge of the misfeasance of such officers in connection with the alleged false imprisonment of one Clarence Patterson, the relator in the case.

The patrolmen are Harold J. Collins, John A. Berglund, and George W. Pate, all members of the Missouri state highway patrol, which is provided for by Sections 8346-8365, R.S.Mo.1939, Mo.R.S.A. §§ 8346-8365. By Section 8356, each member of the patrol, before entering upon the discharge of his duties is required to give a bond in the sum of $5,000 for the faithful performance of the duties of his office and the sureties named as defendants to the action are three surety companies, each of which had executed a bond covering one of the individual patrolmen as principal. In other words, while relator charges the three patrolmen with joint liability, each surety is only responsible for the misfeasance, if any, of the particular officer upon whose faithful and impartial performance of the duties of his office such surety's bond was specifically conditioned.

After alleging the execution of the bonds, the petition charged that the three patrolmen had not faithfully and lawfully performed the duties of their respective offices, but instead had breached their bonds by maliciously, oppressively, unlawfully, and without justification, cause, or excuse, compelling relator, by force and against his will, to leave the job where he was employed at a rock quarry at Auxvasse, Missouri, and go with them in a patrol car into Audrain County, and into a sparsely inhabited portion of said county; by then and there restraining him of his liberty for a period of two or three hours without reasonable cause, and without lawful right to do so, and against his will; and by then and there maliciously, oppressively, unlawfully and violently assaulting and beating relator, and threatening to shoot him if he did not confess the commission of a particular crime of which he was suspected.

Judgment was prayed in the petition against defendants and each of them in the sum of $2,500 actual damages and $2,500 punitive damages, or for the total amount of $5,000. However, during the course of the trial, the prayer for punitive damages was voluntarily withdrawn by relator, leaving his recovery, if any, to be restricted to the actual damages sustained within the limit fixed by his petition.

The defendant patrolmen answered separately and identically, each by a general denial, while the defendant surety companies likewise answered separately and identically, each by a general denial coupled with a special plea involving the right of relator to prosecute the action in the name of the state for his own use and benefit.

At the close of plaintiff's case, the court overruled the usual demurrers interposed by each of the six defendants, as well as a further demurrer on the part of all the defendants jointly by which they sought to raise the question of misjoinder of causes of action. However, at the close of the whole case, the court, having meanwhile come to a different conclusion, sustained demurrers to the evidence for each of the six defendants, and directed the return of a verdict finding the issues in favor of each and all of the defendants. Such verdict was thereupon returned into court and filed; and upon the overruling of plaintiff's motion for a new trial, final judgment was entered in favor of defendants. From the judgment so entered upon the verdict, plaintiff's appeal to this court has followed in the usual course.

The present controversy grows out of the attempt by the three defendant officers to solve the theft of a grease gun from the filling station of one Marvin Fisher at Kingdon City, Missouri, in the early part of October, 1940.

Fisher had observed relator, Clarence Patterson, at work on a tire in the vicinity of the grease gun shortly prior to the time that it was found to be missing, and on receiving information that Patterson had subsequently traded a grease gun in on a radio at a filling station in Mexico, Missouri, Fisher communicated his information to defendant Collins with a view to the latter's investigation of the matter.

Collins thereupon called headquarters at Jefferson City for permission to go to Mexico (which was out of his territory) and contact defendants Pate and Berglund so that the three of them might check the filling stations on Highway No. 54 leading into Mexico, and ascertain whether Patterson had bought a radio at any one of them. Receiving the necessary permission from headquarters, Collins went to Mexico and contacted Pate and Berglund; but upon a check of all the filling stations along the highway where it was thought that the radio had been bought, no station was located where such a transaction had taken place.

It was then determined that Collins should go to the rock quarry at Auxvasse where Patterson was employed, and interrogate one Bud Payne, the man who had given Fisher his information regarding the fact that Patterson had turned in a grease gun on the purchase price of a radio which he had bought at a filling station in Mexico. Payne reaffirmed the fact that Patterson had purchased the radio, but disclaimed any knowledge of the station at which he had bought it, whereupon Collins had Patterson called into the quarry office, and from there brought him into Mexico in the patrol car, where Pate and Berglund were once again contacted for a further investigation of the case.

It was about eleven o'clock in the morning (Collins put it at twenty to twelve) when Collins left the quarry with Patterson in his car, and upon meeting up with Pate and Berglund in Mexico, the four men got into the patrol car assigned to the Mexico officers, and drove out the length of Highway No. 22 in an effort to have Patterson identify the station at which he had bought the radio. Collins testified, incidentally, that Patterson had meanwhile told him that the station was located on Highway No. 22, and not on Highway No. 54 as the officers at first had been led to believe.

Berglund was at the wheel, and drove out to a point beyond the last filling station on Highway No. 22 without having Patterson identify the station at which he had bought the radio. The car was then turned around, and on the trip back into the city over the same course, Patterson finally identified a Goodrich tire station as the place at which he had made his purchase. In explaining the difficulty in making the identification, both Pate and Collins testified that the station's location was such that it was hardly visible to persons in an automobile leaving the city, but was in plain view of any one coming into the city.

Having been successful in securing an identification of the station at which the purchase had been made, Collins did not await the completion of the investigation, but at once transferred with Patterson to his own patrol car, and immediately drove to Auxvasse, where Patterson was let out of the car. According to Collins, it was about a quarter to one, but according to Patterson, about one-thirty, when Patterson got out of the car at Auxvasse; and from there he subsequently drove with one Orville Wilkerson on down to the quarry from whence he had left with Collins a couple of hours before.

Thus far there was no dispute about the underlying facts of the case, that is, that Collins had brought Patterson to Mexico in connection with an official investigation of the alleged theft of the grease gun, and some two hours later had let him out of the car at Auxvasse after establishing the identity of the station at which he had purchased the radio. However there was a most pointed and serious dispute as to whether Patterson was taken away from the rock quarry under arrest, and thereafter subjected to abusive and violent treatment at the hands of all three officers while in their restraint, if so he was.

The defense of the officers was that Patterson was at no time arrested or put under restraint on the occasion in question in this proceeding, but that instead he freely and willingly accompanied Collins to Mexico in the patrol car in order to assist the officers in their investigation by pointing out the station at which he had bought the radio.

Not only did Collins so testify regarding the conditions under which he had taken Patterson away from the rock quarry, but in addition he was strongly corroborated by one Will Yates, one of the two owners and operators of the quarry, who testified that Collins, before ever undertaking to contact Patterson, had requested his permission for Patterson to leave the quarry premises, and that it was only with his permission that Collins spoke to Patterson and arranged for the latter to accompany him to Mexico. Furthermore, Collins testified that his reason for taking Patterson back to Auxvasse so promptly after the station had been identified, and before the investigation had been completed, was the fact that he had agreed with Yates "to have him away only a short time". As a matter of fact, no charge was ever preferred against Patterson in regard to the theft of the grease gun, which would seem to indicate, although the record is silent upon the question, that the completion of the...