Wehmeyer v. Mulvihill

• Decision Date: 19 April 1910
• Citation: 130 S.W. 681,150 Mo. App. 197
• Parties: WEHMEYER v. MULVIHILL et al.
• Court: Missouri Court of Appeals

130 S.W. 681

150 Mo. App. 197

WEHMEYER v. MULVIHILL et al.

St. Louis Court of Appeals. Missouri.

April 19, 1910.

Rehearing Denied June 28, 1910.

1. MALICIOUS PROSECUTION (§ 16) — ELEMENTS.

To recover for malicious prosecution, it must be averred and proved that the prosecution was instituted maliciously and without probable cause.

2. FALSE IMPRISONMENT (§§ 2, 4)—ELEMENTS.

The gist of an action for false imprisonment is the unlawful detention, and, to recover, it is only necessary to prove the detention and the unlawfulness thereof, and malice or want of probable cause need not be proved.

3. FALSE IMPRISONMENT (§ 7)—LAWFUL ARREST.

An action for false imprisonment may not be maintained for an arrest which is lawful no matter at whose instigation or for what motive the arrest was made.

4. FALSE IMPRISONMENT (§ 7) — SERVICE OF WARRANT—LIABILITY.

An officer is protected against an action for false imprisonment when acting under a warrant which is fair and valid on its face, issued by competent jurisdiction, but where the warrant on its face is invalid, so that the officer may see that no authority is conferred thereby, the warrant is no protection.

5. ARREST (§ 63)—CRIMINAL OFFENSE—RIGHT TO ARREST WITHOUT WARRANT—OFFICERS.

At common law, an officer may not arrest without warrant for a misdemeanor, unless committed in his presence, but, where a felony has been committed, the officer may arrest without a warrant on grounds of reasonable suspicion pointing to the person arrested as the offender.

6. ARREST (§ 63)—CRIMINAL OFFENSE—RIGHT TO ARREST WITHOUT WARRANT—OFFICERS.

Under Rev. St. 1899, § 6212 (Ann. St. 1906, p. 3107), creating and conferring power on the police of certain cities, the police of the city of St. Louis may arrest without warrant for a misdemeanor previously committed, though not committed in the presence of the officer who has reasonable grounds to suspect the person arrested is the perpetrator of the crime.

7. FALSE IMPRISONMENT (§ 7)—LIABILITY.

An officer making an arrest without a warrant, having authority so to do, may justify his act, though no offense has actually been perpetrated by the person arrested, by showing that he had reasonable cause to suspect such person of having committed an offense, but, where the officer has no reasonable grounds to suspect the person arrested with the commission of an offense, the arrest is unjustifiable.

8. FALSE PRETENSES (§ 7)—ACTS CONSTITUTING.

A customer bought a rug from a merchant for $6.50 and paid him $1.50. The customer had a claim against the merchant for $5, and the latter had agreed that the $5 might be used for the payment of goods. The rug was to be delivered C. O. D. On the customer obtaining possession of the rug from the deliveryman, he tendered in payment his claim against the merchant, which was refused; the deliveryman having surrendered the rug on the expectation of receiving $5 in cash. Held, that the customer was not guilty of obtaining goods under false pretenses with intent to defraud the merchant.

9. FALSE IMPRISONMENT (§ 7)—JUSTIFICATION OF ARREST.

Where an arrest is made without a warrant or without reasonable grounds of suspicion for an offense not committed in the presence of the officer, there is no sufficient justification for the arrest in an action for false imprisonment.

10. FALSE IMPRISONMENT (§ 7) — JUSTIFICATION OF ARREST.

A citizen having knowledge that another has committed an offense may arrest the offender or direct an officer to do so, but, where he arrests another or directs an officer to do so without warrant and no offense has been committed, the citizen must respond in civil action for damages sustained in consequence of the arrest and imprisonment.

11. FALSE IMPRISONMENT (§ 7) — JUSTIFICATION OF ARREST.

Where an officer acts at the direction of a citizen without a warrant or reasonable grounds of suspicion for an offense not committed in his presence, the only matter of justification which may be shown in defense of an action for false imprisonment is that the person arrested was actually guilty of an offense.

12. APPEAL AND ERROR (§ 1033)—HARMLESS ERROR—ERRONEOUS INSTRUCTIONS.

One sued for false imprisonment may not complain because the court erroneously required the jury to find that he acted maliciously, and without probable cause, before awarding actual damages.

13. FALSE IMPRISONMENT (§ 35)—DAMAGES— PUNITIVE DAMAGES.

Punitive damages in an action for false imprisonment are allowable for malice or wanton conduct of defendant, but as the motive actuating him is the criterion by which punitive damages are awarded or denied, the jury must consider the question of malice and want of probable cause, and must consider, in mitigation thereof, such reprehensible conduct of plaintiff, if any, as tends to show a reasonably sufficient provocation for defendant's acts.

14. FALSE IMPRISONMENT (§ 40)—DAMAGES— PUNITIVE DAMAGES.

Where, in an action for false imprisonment based on the arrest of plaintiff on the charge of false pretenses, the evidence showed that plaintiff was not guilty of any offense, and there was slight evidence that his conduct was such as to repel the idea that defendant acted with malice or wantonness in causing his arrest, the court in submitting the issue of punitive damages must require the jury to consider plaintiff's conduct in mitigation.

15. FALSE IMPRISONMENT (§ 15)—TORTS—LIABILITY.

Where the president of a corporation acted within the scope of his authority and for the corporation in making a false arrest of a person growing out of a controversy resulting from a sale of goods by the corporation to such person and an endeavor to collect money from him, the corporation was liable for the acts of the president.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by Carl Wehmeyer against M. J. Mulvihill and another. From a judgment for plaintiff, defendants appeal. Conditionally affirmed.

Frank A. C. MacManus, for appellants. Harry Baer and O. W. Hammer, for respondent.

NORTONI, J.

This is a suit for damages accrued on account of a false imprisonment. The plaintiff recovered both actual and punitive damages, and defendants appeal.

It appears that plaintiff, who was the proprietor of a nickelodeon, known as the Star Theatre, 1511 Market street, made a purchase of some linoleum from the defendant furniture company, of which Michael J. Mulvihill is the president. On this purchase, a payment of $5 was made, and defendant gave a receipt for that amount. On the following day plaintiff canceled the order for linoleum, and the defendant agreed that he might have credit at the furniture store to the amount of $5 to be thereafter paid in goods which plaintiff might see fit to purchase. The purport of the instruction was for plaintiff to retain the receipt showing $5 was paid on the linoleum ordered, and that goods would be exchanged therefor. The matter ran along thus for about two months, and plaintiff called at defendants' store and purchased a rug from one of defendants' salesmen for the price of $6.50. He paid $1.50 on the rug and instructed that it be delivered at his theater C. O. D. for the balance of the purchase price. The rug was delivered on the following day by defendants' employé engaged in delivering goods, and plaintiff proffered the receipt for $5, representing the amount due him from defendants on the linoleum purchase in payment on the amount due on the rug. Defendants' driver had no information touching the arrangement between plaintiff and defendants in respect of this matter, and declined to accept the receipt as payment on the rug. Plaintiff insisted defendants owed him the balance of $5 on the linoleum transaction, and told the deliveryman that defendants would accept the receipt in payment, as per their prior agreement to pay him the amount in goods. Notwithstanding this, the deliveryman declined to accept the receipt, returned to defendants' store, and related the facts to the defendant, Michael J. Mulvihill, president of the defendant corporation. Mr. Mulvihill thereupon instructed the deliveryman, Scott, to go to the police station, about three or four blocks distant from the store, and state the facts to the officer in charge. Upon relating the facts to the officer in charge at the police station, an officer was detailed to accompany Scott, the deliveryman, to plaintiff's place of business. The officer and Scott repaired immediately thereto, accosted plaintiff and inquired touching the matter in dispute; that is to say, the officer inquired what was the trouble between him and defendants about the purchase of the rug. Plaintiff thereupon explained the circumstances to the police officer, and showed him the receipt which he held from the defendant furniture company for $5 theretofore paid on the linoleum. He stated that it had theretofore been agreed by Mr. Mulvihill he might at any time have $5 in goods in liquidation of the amount of cash theretofore paid by him on the linoleum which he had never received. After hearing plaintiff's statement, the officer suggested that he had better accompany him to Mr. Mulvihill's store and talk it over. Thereupon the police officer, the plaintiff, and Scott, the defendants' deliveryman, repaired to defendants' furniture store, and discussed the matter with Mr. Mulvihill. The plaintiff insisted that he had a right to keep the rug and apply the amount due him from the defendant on the purchase price thereof. And it appears that Mr. Mulvihill insisted such was not proper in view of the fact plaintiff had purchased the rug by paying $1.50 down with an understanding the remaining $5 of the purchase price was to be paid upon delivery. Of this Mr. Mulvihill says: "I asked him why he wanted to act in that way. He said he thought he was entitled to that rug. I told him I didn't think he was entitled to it in that way; that it was a commercial transaction. He purchased it from the salesman and...