Thompson v. Bucholz

• Decision Date: 26 April 1904
• Citation: Thompson v. Bucholz, 81 S.W. 490, 107 Mo. App. 121 (Mo. App. 1904)
• Parties: THOMPSON v. BUCHOLZ.
• Court: Missouri Court of Appeals

81 S.W. 490

107 Mo. App. 121

THOMPSON v. BUCHOLZ.

St. Louis Court of Appeals. Missouri.

April 26, 1904.

FALSE IMPRISONMENT — PLEADING — PROBABLE CAUSE — INSTRUCTIONS.

1. In an action for false imprisonment, plaintiff need not show want of probable cause.

2. In an action for false imprisonment, defendant cannot prove probable cause under a plea of the general issue.

3. Where, in an action for false imprisonment, defendant plead the general issue, but evidence tending to show probable cause was admitted without objection, the court was not required to mention the question of probable cause in the instructions.

4. In an action for false imprisonment, in which it appeared that the officers who arrested plaintiff acted under the direction of defendant, an instruction that, if the officers suspected that plaintiff had committed a felony, it was their duty to lock him up, and defendant was not liable, was properly refused, as without foundation in the evidence.

5. Appellant cannot complain of failure to submit a phase of the case on which no instruction was requested.

Goode, J., dissenting in part.

Appeal from Hannibal Court of Common Pleas; David H. Eby, Judge.

Action by Frank L. Thompson against William Bucholz. From a judgment for plaintiff, defendant appeals. Affirmed.

E. W. Nelson, T. J. Gatts, and J. G. Cable, for appellant. G. W. Whitecotton, for respondent.

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 was well acquainted with defendant. Shortly after twelve o'clock on the night of January 10, 1903, Police Officers Groves and Higgenbothan 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 that 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 whisky.' 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, collected 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. Bucholz 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, toward 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 10th day of January, 1903, in the city of Hannibal, Marion county, Missouri, the defendant requested Police Officers Higgenbothan 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 10th 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,...