Thompson v. Buchholz

• Decision Date: 26 April 1904
• Citation: 81 S.W. 490,107 Mo.App. 121
• Parties: THOMPSON, Respondent, v. BUCHHOLZ, Appellant
• Court: Missouri Court of Appeals

81 S.W. 490

107 Mo.App. 121

THOMPSON, Respondent, v. BUCHHOLZ, Appellant

Court of Appeals of Missouri, St. Louis

April 26, 1904

Appeal from Hannibal Court of Common Pleas.--Hon. David H. Eby Judge.

Judgment affirmed.

E. W Nelson and Kelly & Buchholz for defendant.

(1) The petition does not state a cause of action. It does not allege want of reasonable or probable cause and does not show that the arrest was unauthorized.. Taaffe v. Kyne, 9 Mo.App. 15; Larke v. Bards, 4 Mo.App. 186; Burns v. Erben, 40 N.Y. 463; 11 Mass. 492; 2 Chitty Pl. 600. (2) The arrest was made by an officer having power to make it. Such being the case, the only complaint that could be maintained against one who directed or requested the officer thus to use the power given him by the law would be on the ground of malicious persecution. False imprisonment can not be predicated on such facts. Henry v. Lowell, 15 Barb. 268; 1 Waterman on Trespass, sec. 307-367. (3) An action for false imprisonment can not be maintained for an arrest made where a peace officer had reasonable cause to suspect that a felony has been committed. It is his duty to arrest. Willis v. Warren, 17 How. Pr. 100.

G. W Whitecotton for respondent.

BLAND, P. J. Reyburn, J., concurs. Goode, J., dissents, thinking the first instruction for plaintiff is wrong.

OPINION

BLAND, P. J.

The suit was to recover damages for false imprisonment. The answer was a general denial. The verdict and judgment were for plaintiff from which defendant appealed.

The following (taken from respondent's abstract) is a fair summary of the evidence:

"The defendant is a keeper of a saloon on Broadway in the city of Hannibal, and plaintiff is a single man twenty-two years old, born and reared in Hannibal, and living with his parents two and one-half blocks from defendant's saloon and worked at a butcher shop across the street from the saloon and well acquainted with defendant. Shortly after twelve o'clock on the night of January the tenth, 1903, police officers Groves and Higgenbotham were notified by telephone that defendant's saloon was open. The officers went to the saloon and found one Ben Wright, who had frequently served as a substitute bartender at the saloon, very drunk and in charge of the place. Wright greeted them hilariously with the remark, 'Business is business, and it takes money to buy whiskey.' Wright claimed that he had found the door open and had met plaintiff in the saloon, and had given plaintiff a glass of beer. Others came in and Wright served them at the bar, collecting the money for the same and put it in the money drawer. Upon examination the officers found that the front door of the saloon had been forced open, and from appearances done by some one from the inside--indicating that some one had been shut up in the saloon and had broken out. Mr. Buchholz soon came and found nothing missing, and upon hearing the statement of Wright requested the officers to go and get plaintiff. The officers found plaintiff at his father's home, abed, asleep. They took plaintiff to the saloon and defendant requested them to 'lock him up and make him prove Monday where he was at.' The officers locked plaintiff in the city jail with a crazy negro where he remained until Monday afternoon. They had no warrant. No information or other proceeding was filed against plaintiff. Defendant took no further steps in the matter after having plaintiff locked up towards prosecuting him or having him released, and in the afternoon of Monday the jailer released plaintiff on his own motion."

1. Appellant complains of the following instruction given for plaintiff:

"1. The court instructs the jury that if they believe from the evidence in the case that on or about the tenth day of January, 1903, in the city of Hannibal, Marion county, Missouri, the defendant requested police officers, Higgenbotham and Grove, to arrest plaintiff and take him to jail, and in pursuance of said request said police officers did arrest plaintiff and take him to the city jail in said city, and therein imprisoned plaintiff for thirty-six (36) hours or any number of hours, and that defendant was discharged from said imprisonment before this suit was brought, then plaintiff is entitled to recover in this action such damages as the jury may believe from the evidence will compensate plaintiff for said wrongful arrest and imprisonment, including compensation for any pain or mental anguish that the jury may believe from the evidence plaintiff sustained by reason of said imprisonment, if any."

The objection made to the instruction is that it authorized a recovery, notwithstanding there may have been probable cause for the imprisonment.

The charging part of the petition is as follows:

"Plaintiff states that heretofore, to-wit: on the tenth day of January, 1903, in the city of Hannibal, township of Mason, county of Marion and state of Missouri, the defendant, maliciously intending and contriving to injure plaintiff, did then and there cause and procure plaintiff to be by force imprisoned in the city jail of said city, and the plaintiff was then and there imprisoned and restrained of his liberty for a period of more than thirty-six (36) hours and until the twelfth day of January, 1903, at two o'clock in the afternoon thereof, without any lawful right or authority and without any reasonable cause, and against the will of plaintiff," etc.

The answer was a general denial.

In this state of the pleadings, the plaintiff contends that the issue of probable cause was not in the case, and the only issue is whether or not plaintiff was imprisoned by the defendant. A plaintiff in this character of action makes out his case when he shows that he was intentionally detained as a prisoner by the defendant, without any warrant therefor, and is not required to prove malice or want of probable cause. Boeger v. Langenberg, 97 Mo. 390, 11 S.W. 223; McCaskey v. Garrett, 91 Mo.App. 354. In this character of case, when the plaintiff makes proof of his imprisonment, the defendant may justify by showing legal process or an efficient cause for the...