Stine v. Shuttle

• Decision Date: 20 November 1962
• Docket Number: No. 19452,19452
• Citation: 134 Ind.App. 67,186 N.E.2d 168
• Parties: Charles W. STINE, Appellant, v. Allen SHUTTLE, Erman Hoover, Jr., Clarence McCoy, as City Clerk of the City of Evansville, Indiana, the City of Evansville, Indiana, Appellees.
• Court: Indiana Appellate Court

Page 168

186 N.E.2d 168

134 Ind.App. 67

Charles W. STINE, Appellant, v. Allen SHUTTLE, Erman Hoover, Jr., Clarence McCoy, as City Clerk of the City of Evansville, Indiana, the City of Evansville, Indiana, Appellees.

No. 19452.

Appellate Court of Indiana, In Banc.

Nov. 20, 1962.

Russell S. Armstrong, Evansville, for appellant.

Wilbur F. Dassel, Evansville, for appellees Allen Shuttle and Ermon Hoover, Jr.

Jerome L. Salm and Raymond P. Knoll, Evansville, for appellees Clarence McCoy, as City Clerk of City of Evansville, and City of Evansville.

COOPER, Presiding Justice.

This is appeal from the Superior Court of Vanderburgh County wherein the appellant filed a complaint in one paragraph to recover damages allegedly sustained by the appellant because of an alleged false arrest. It also appears from the record that the appellant herein filed an amended complaint to which the appellees filed a joint and several demurrer to the appellant's amended complaint, which was sustained by the trial court. It also appears that the appellant, failing and refusing to plead over, elected to abide by the ruling of the court on said demurrer for the purpose of appeal. Thereafter, the trial court accordingly entered judgment against the appellant and for each of the appellees on said demurrer.

The assigned error before us, in substance, is the court erred in sustaining the demurrers of the defendants below.

The pertinent part of the appellant's amended complaint reads as follows:

'1. That at all times herein complained of and on or about the 16th day of November, 1957, defendants, Allen Shuttle and Ermon Hoover, Jr., and each of them, were duly appointed and acting policemen of and in, and members of, the Police Department of the defendant, City of Evansville, Indiana.

'2. That at all times herein referred to and on or about the said 16th day of November, 1957, the defendant, Clarence McCoy, was the duly elected, qualified, and acting City Clerk of the said defendant, City of Evansville, Indiana, and in said capacity did duly and with proper authority employ, for and on behalf of said defendant, City of Evansville, Indiana, others to assist in the transaction of business conducted in the office of the said City Clerk of the said City of Evansville, Indiana.

'3. That on or about the said 16th day of November, 1957, plaintiff was, without justification and without cause or proper reason, as hereinafter alleged, arrested by the said defendants, the said Shuttle and the said Hoover, and each of them, on a warrant issued by the said defendant, Clarence McCoy, acting as the duly elected, qualified, and acting City Clerk of the said defendant, the said City of Evansville, Indiana, as aforesaid, and by and through said employees in said office of said City Clerk, and each of them, which said warrant was issued as aforesaid improperly and without proper cause, as more particularly alleged hereinafter, as aforesaid; that plaintiff was forced and compelled by the defendants, Allen Shuttle and Ermon Hoover, Jr., upon his said arrest to ride from his home to the police station in a paddy wagon of said Police Department, and plaintiff was also at the time of his said arrest forced by said defendants, Shuttle and Hoover, to submit to a search of his person, all of which procedure took place out-of-doors and under circumstances which exposed plaintiff to the observation of others during said transactions aforesaid.

'4. That said warrant was issued for plaintiff's arrest on the ground that plaintiff failed to pay an overtime parking fine automatically imposed by the defendant, City of Evansville, Indiana, for plaintiff's failure to place the proper or sufficient amount of money in an appropriate mechanical meter, which was at all times herein complained of located and situate within the city limits of said City of Evansville, Indiana, and serving the parking space therein in which plaintiff had parked his automobile on the occasion of his said failure to deposit the proper or sufficient amount of said money for the duration of such parking, as aforesaid, but that more than twenty-four (24) hours prior to said arrest, as aforesaid, said fine was paid by, for, and on behalf of the plaintiff at and to the said Police Department of the said defendant, City of Evansville, Indiana, and that a proper receipt, showing the said payment of said fine, as aforesaid, and issued on a regular form of said Police Department, was given to the plaintiff by said Police Department on the occasion and at the time the said fine was paid, as aforesaid; that the defendants, Allen Shuttle and Ermon Hoover, Jr., and each of them, prior to and at the time of the said arrest of the plaintiff, as aforesaid, and the defendant, Clarence McCoy, as City Clerk of the City of Evansville, at the time said warrant was issued as aforesaid, and prior to and at the time of said arrest, as aforesaid, knew and had knowledge that said fine had been paid as aforesaid.

'5. That plaintiff was, at said time, the news editor of the Evansville Courier, a daily newspaper published in the City of Evansville, County of Vanderburgh, State of Indiana.

'6. That by reason of said wrongful acts of the defendants, and each of them, as aforesaid, plaintiff was forced and compelled to undergo great and severe mental pain and anguish and humiliation and to suffer damage and hurt to his reputation in his profession and among his friends and associates and in his neighborhood. * * *'

It also appears that the pertinent parts of the demurrer and memorandum aver that the statutory grounds to the plaintiff's complaint fail to state facts sufficient to constitute a cause of action against the defendants, and, in their memorandum attached thereto, state among other things that that City of Evansville, Indiana, in the absence of a special statute, which imposes liability, is not liable for the tortious acts of its officers and servants in connection with a governmental function; that Clarence McCoy as Clerk of the City of Evansville was performing a judicial function at the time he executed the warrant in question and as he was an executive officer of the City, he was not liable to individuals, either for a failure to perform or for a negligent performance of such duties, where no corruption or malice is imputable, and keeps strictly within the limits of his powers; and further avers that a police officer is protected in executing a warrant regular on its face and is not liable for false arrest or false imprisonment, even though in truth, the warrant was wrongful issued and without authority.

The only question before us is: Does the appellant's complaint state a cause of action against each or any of the defendants under the law applicable to the facts averred?

It is generally recognized that in the phrases 'false arrest' and 'false imprisonment', the word 'false' comes from the common law and is synonymous with unlawful. See 16 Words and Phrases, Permanent Edition. We note that the appellant uses the phrase 'false arrest' throughout his complaint and in the Law of Arrest by Alexander, Vol. 2, p. 1543, we also find the following statement:

'A false arrest is an unlawful arrest. The arrest or detention is real, not false, but the grounds therefor are false, not real.'

With the foregoing in mind, we will now turn our discussion to the sufficiency of the complaint under the averments thereof.

It is the general rule of law that a tort action for false arrest, or false imprisonment, is based upon deprivation of one's liberty without legal process that may arise when arrest or detention is without warrant or a warrant that charges no offense, or is void or the person arrested is not the person named in the warrant and all that must be averred or shown in the deprivation of one's liberty without legal process. See Cleveland v. Emerson (1912) 51 Ind.App. 339, 99 N.E. 796; Efroymson v. Smith (1902) (T.D.) 29 Ind.App. 451, 63 N.E. 328; Melton v. Rickman, 225 N.C. 700, 36 S.E.2d 276, 162 A.L.R. 793; George v. Leonard, D.C.S.C., 71 F.Supp. 662, 664. Therefore, it appears that the arrest in such actions must be based upon a void, erroneous or irregular process. We find the general statement of law well stated in Vol. 35 C.J.S. False Imprisonment § 28, p. 665, distinguishing between void, erroneous and irregular process, which general statements read, as follows 'While the courts ordinarily distinguish...