Klein v. Pollard

Grant, J. (after stating the facts). 1, The court in his charge said to the jury that it was clearly proven that the saloon from which the plaintiff came at midnight was a disorderly one. The fact so stated is not denied. The court instructed the jury that, if the defendant’s statement as to what happened between him and plaintiff was correct, he was justified under the law in taking the plaintiff to police headquarters for examination by the lieutenant in charge. This presents the principal question in the case. It is the contention of counsel for the plaintiff that her arrest was unlawful because it was without a complaint or warrant, and she was not suspected of having committed a felony, neither was she engaged in commit- [204] ting a breach of the peace. Tillman v. Beard, 121 Mich. 475 (46 L. R. A. 215), and Robison v. Miner, 68 Mich. 549, do not control this case. In neither of those cases was there any excuse for arresting the party without obtaining a warrant. One was the case of a peddler in a street, the other the case of a saloonkeeper keeping his saloon open at a time prohibited by law. The duty imposed upon the police department to protect the city from vagrants, night-walkers, gamblers, and other sorts of criminals who ply their vocation largely in the night is an important and difficult one. No rule can be laid down governing all the circumstances under which a party under suspicion may be arrested. It is, however, established by a decision of this court (which seems to have escaped the attention of counsel of both parties and of the trial court, as it is not cited in their briefs) that the arrest of plaintiff was unlawful. Pinkerton v. Verberg, 78 Mich. 573 (7 L. R. A. 507). Police officers are not justified in arresting a person quietly walking the streets of the city at any, hour of the night simply because he has emerged from a disreputable place. There is no evidence in this case to show that plaintiff was a prostitute', except the fact that she had been seen in her husband’s disreputable saloon, and came therefrom late in the fiight. She was quiet, peaceable, making no disturbance, and there was nothing to indicate that she was plying a prostitute’s vocation, or intended to do so, by solicitation. The chief difference between the facts of Pinkerton v. Verberg and those of this case are that in the former case plaintiff was arrested while peaceably walking the streets about an hour and a half earlier in the night than was the plaintiff in this case. In the former case the evidence on the part of defendant showed that the plaintiff was a prostitute, while in this case there is no such evidence. The defendant testified that he was in the saloon on the night in question, about a quarter of 11 o’clock, and that— “It was my duty to go to this saloon every evening when I was on the beat nights, because it was disorderly, [205] prostitutes frequent there and disorderly men and women. We went to look after it, and put. it in good running order, and find who was there.” If the police department would, by complaints and arrests, enforce the law closing this saloon and others, as the law requires, it would much more effectually prevent disorder than the arrest of parties quietly walking the streets and apparently engaged in no criminal conduct. The better way “to put such places in good running order ” is to compel obedience to the law which governs them. It follows that the arrest was unlawful, and the court should have so instructed the jury. 2. All circumstances which tended to show the good faith of the defendant were admissible in mitigation of damages. It was therefore competent to. show the instruction of the defendant’s superior officers in dealing with persons found upon the streets under circumstances in which the plaintiff was found. Judgment reversed, and new trial ordered. Blair, Montgomery, Hooker, and Moore, JJ., concurred.