Hanser v. Bieber

WALKER, J. This suit was instituted in the circuit court of the city of St. Louis. The petition is in two counts, one alleging false imprisonment, the other malicious prosecution. The court sustained a demurrer to both counts at the close of plaintiff’s testimony. From the court’s refusal to set aside the nonsuit necessitated by its ruling on the demurrer, the plaintiff appeals. Plaintiff, then an employee of a glass company, went on July 20, 1913, under the direction of his employer, to make certain measurements of windows in the Century Building in the city of St. Louis to enable his employer to bid upon some plate glass to be furnished in the reconstruction of the building. In the discharge of this duty he entered the rooms on the second floor of said building occupied for mercantile purposes by the defendant Jacob Bieber. On entering, plaintiff explained his errand to an — 334 — employee, who making no reply, plaintiff proceeded to the windows and commenced measuring them. While calling out the sizes to an assistant the defendant Philip- Bieber, an employee, or having an interest in the store, entered and ordered them out. After an ineffectual effort to explain their business they started towards the door. When within a few feet of it Philip Bieber called out “Sophie,” whereupon a Miss Bieber, one of the defendants and' also an employee of Jacob Bieber, appeared and pushed or shoved the plaintiff as he was backing out of the door, and upon his attempting to explain their presence she said she was going to have them arrested. Soon thereafter, while plaintiff and his assistant were measuring windows elsewhere in the building, a police officer accompanied by Miss Bieber approached and she pointed them out saying, “Those are the men.” The officer asked why she desired the arrest made and she said, “For disturbing our peace. ’ ’ The officer replied that the men were at work and they did not look like they were disturbing anyone’s peace. Miss Bieber insisted on the arrest being made and plaintiff and his assistant were informed by the officer that they were under arrest. Jacob Bieber, the proprietor of the store, also a defendant, saw plaintiff and his assistant in custody of the officer as they were being taken out of the building and was informed of the facts by Sophie Bieber at the time of the arrest, as he was also by Philip Bieber a few minutes thereafter. A patrol wagon such as is employed in conveying prisoners charged with crime to police stations was called and plaintiff and his assistant were placed therein and were conveyed in the custody of officers to a police station on Clark Avenue. Philip and Sophie Bieber followed the officers when they took the plaintiff and his assistant into custody and were present while they waited for a time at 11th and Pine streets for the patrol wagon. Arriving át the station, to which Philip and Sophie Bieber had also repaired, charges were preferred against the plaintiff and his assistant for disturbing the peace, with Philip and Sophie Bieber as complaining witnesses. While in custody at the police station an officer started to search the plaintiff, but was — 335 — notified by tbe desk sergeant that this was not necessary. After giving personal bonds in the sum of $300 each for their appearance, they were, after half an hour’s detention, released. Thereafter, upon a trial before a police court, they were found guilty and fined. Upon an appeal to the Court of Criminal Correction the judgment of the police court was reversed and plaintiff and his assistant were discharged. Demurrer. I. In filing a demurrer to plaintiff’s evidence the demurrant admits the truth of same and the conclusions a jury may reasonably draw therefrom. Hence a trial court in passing upon such a demurrer must consider the evidence to be true, and in so doing draw every inference in its favor that the law will warrant. Thus much for the rule, well established in our procedure, by which we are to determine the trial court’s correctness in ruling upon the demurrer filed herein. [Meenach v. Crawford, 187 S. W. l. c. 882.] False Imprisonment. TT- False imprisonment consists of the direct restraint of personal liberty. To éstablish it want of probable cause and malice need not be proved. [Tiede v. Fuhr, 264 Mo. l. c. 625.] Unlawful detention is the basis of the action. Actual seizure or the laying on of hands is not necessary to constitute an unlawful detention. If the party is within the power of the person making the arrest and subject to such power, but not of his own will, goes with his captor, it is an arrest such as is contemplated to authorize an action for false imprisonment. [Ahern v. Collins, 39 Mo. 146; Fellows v. Goodman, 49 Mo. 62; Dunlevy v. Wolferman, 106 Mo. App. l. c. 51.] We said in Tiede v. Fuhr, supra, that the character of the restraint, however courteous, would not destroy the plaintiff’s right of action if it appeared that the writ under which he was held was without justification; and in a well considered case by the Nansas City Court of Appeals (Singleton v. Exhibition Co., 172 Mo. App. l. c. 307) it was held that if in the exercise of his authority an officer commands a person to accompany him and takes him to a place where persons ar — 336 — rested are usually taken and the person taken goes in submission to such authority and not of his own volition, this constitutes an arrest. This is in accord with the current of authority on this subject. Let us recall briefly the vital facts in the instant case; the officer, under the direction of defendants, took plaintiff into custody, placed him in a patrol wagon and conveyed bim to a police station where a charge was preferred against him for disturbing the peace, the defendants Philip and Sophie Bieber being entered as complaining witnesses. To compel his appearance at a hearing he was held to bail. Tried before a police court he was found guilty. On appeal to the court of criminal correction he was acquitted. In Pandjiris v. Hartman, 196 Mo. 539, in which the issuable facts had their origin in the city of St. Louis, we said: “It is the right and privilege of any citizen knowing that one has committed or is in the act of committing a crime to arrest the offender or cause him to be arrested without waiting for a warrant, but in doing so the unofficial citizen takes this risk, to-wit, if it should turn out that the man whom he has arrested was not guilty of the crime, the citizen causing the arrest is liable in a civil action for whatever damages the arrested man sustained in consequence of his arrest and imprisonment. In such case it is no answer to the plaintiff’s demand for damages for the defendant to say, ‘I had reasonable cause to believe the plaintiff was guilty; I acted without malice; I took the advice of counsel learned in the law.’ The only plea of justification or excuse is that plaintiff was guilty of the crime for which he was arrested. ’ ’ - The court’s reasoning in the Pandjiris case is based upon facts sufficiently parallel to those in the instant case to authorize the application of the conclusion there reached to the latter. Thus applied, it follows, as expressly stated in that case (p. 548), that the plaintiff made out a prima-facie case when he introduced evidence tending to show that defendants had caused his arrest and detention without a warrant. — 337 — Defendants contend, however, despite these facts, that the arrest was lawful and hence that they cannot be held answerable therefor. This contention is based on the statute (Sec. 9805, R. S. 1909) applicable to cities of 300,-000 or over, which authorizes police boards in such cities, through the instrumentality of the police force, to “prevent crime and arrest offenders.” (This statute, as construed by the St. Louis Court of Appeals in State v. Boyd, 108 Mo. App. 518, and impliedly approved in a review of. that case by this court (196 Mo. l. c. 59), is held to authorize a police officer within the jurisdiction defined to arrest for a misdemeanor not committed in his presence, provided he has reasonable grounds to suspect that the offense has been committed. The construction given the statute is a salutary one. Anyone at all familiar with civil conditions in cities as contradistinguished from the country, realizes that greater power should be given police officers to preserve the peace and arrest offenders in cities than is given to peace officers elsewhere. The court’s interpretation of the statute, therefore, is no more than a recognition of this fact and arises, as have many of our laws defining crimes and regulating criminal procedure, out of the necessities of metropolitan life. Arising as the statute does out of necessity and impinging in its application on the liberty of the individual, the courts have been wisely wary to so limit its enforcement as to afford the least possible danger to the rights of the individual. Hence the court’s proviso in its interpretation of the statuté that the officer must have “reasonable grounds to suspect that a crime has been commited” before an arrest is authorized. The existence of such reasonable grounds rests upon the '• facts in each particular case and their force and sufficiency must be determined by the officer before he acts, otherwise there would be no limitation upon the power thus granted and human liberty would be subject to the whim and caprice of police officers or individuals and render possible arrests and detentions for trivial causes. While it is not necessary that an examination should disclose that an offense has really been committed, the facts upon which the arrest was based, to render the same lawful so — 338 — far as concerns the officer, must be such as to afford at the time a substantial belief in his mind that an offense has been committed. This subject has recently received the careful consideration of the St. Louis Court of Appeals in an opinion by Nortonx, J. (Wehmeyer v. Mulvihill, 150 Mo. App. 197), in which the wholesome doctrine is announced under a state of facts similar in their material features to those in the case at bar, that an arrest made under the statute (Sec. 9805) must be based upon something more than the mere vaporings of an excited citizen complaining of fancied wrongs which the officer has the opportunity to ascertain the true nature of before he arrests the accused. The evidence here does not afford a basis for such a reasonable suspicion, much less the conclusion, that the plaintiff was engaged in other than an orderly discharge of his duties when the complaint was made against him which resulted in his arrest; and the officer, who is chargeable-with having a knowledge of all of the facts he could have obtained by due diligence before he made the arrest (Stubbs v. Mulholland, 168 Mo. 47), had no facts in his possession at the time he took the plaintiff into custody, nor did he attempt to obtain any, other than the empty declaration of the defendant Sophie Bieber, to justify his action. The arrest, therefore, was unauthorized; the detention resulting therefrom unlawful, and the trial court should have' submitted this case on the first count of the petition to the jury.\ Malicious Prosecution. III. While causes of action sounding in false imprisonment and malicious prosecution may be joined in the same suit in different counts, which was the course pursued here, recovery can only be had on one count. [Boeger v. Langenberg, 97 Mo. 390; State ex rel. v. Robertson, 187 S. W. 1. c. 37.] Under this state of facts our ruling on the count for false imprisonment may render unnecessary any discussion as to the sufficiency of the evidence to sustain the count for malicious prosecution, except to determine the question acutely arising as to whether the conviction of — 339 — plaintiff before a police court, notwithstanding his subsequent acquittal of the same charge upon a trial de novo before the Court of Criminal Correction, constitutes such probable cause as to justify the ruling of the- trial court in sustaining the demurrer. According to the weight of authority elsewhere a judgment of conviction in a criminal case is conclusive evidence of probable'cause in an action for malicious prosecution, although the conviction has been reversed on appeal. [Hartshorn v. Smith, 104 Ga. 235; Thomas v. Muehlmann, 92 Ill. App. 571; Adams v. Bicknell, 126 Ind. 210; Witham v. Gowen, 14 Me. 362; Payson v. Caswell, 22 Me. 212; Sidelinger v. Trowbridge, 113 Me. 537; Thick v. Washer, 137 Mich. 155; Price v. Stanley, 128 N. C. 38; Smith v. Thomas, 149 N. C. 100; Fones v. Murdock, 157 Pac. (Ore.) 148; Womack v. Circle, 32 Grat. (Va.) 324; Saunders v. Baldwin, 112 Va. 431.] The only case in this jurisdiction in which the rule above stated has been announced is that of Boogher v. Hough, 99 Mo. 183. If the rule as thus declared may properly be considered as a precedent in the determination of the case before us, then the contention of the respondent that the action of the trial court in sustaining the peremptory instruction so far as same applies to the count for malicious prosecution, must be sustained. In the jurisdictions named it is held generally that a conviction before a justice of the peace followed by an acquittal on appeal is given the same probative force as in cases of conviction before courts of record, subject to the limitation in many cases that the hearing upon which the conviction was based must be fair and free from perjury. In other jurisdictions a conviction before a justice of the peace is only regarded as prima-facie evidence of probable cause where on appeal to a higher court the same is set aside. [Nelson v. Harvester Co., 117 Minn. l. c. 301; Moffatt v. Fisher, 47 Iowa, 473; Olson v. Neal, 63 Iowa, 214; Skeffington v. Eylward, 97 Minn. l. c. 246; Nicholson v. Sternberg, 61 N. Y. App. Div. 54; Hanchey v Brunson, 175 Ala. 236; Goodrich v. Warner, 21 Conn. 432; Delany — 340 — v. Lindsay, 46 Pa. Sup. Ct. 26; Lindsey v. Couch, 22 Okla. 4.] The reasons urged for the application of the rule with or without the limitation are that the accused, upon appeal, may have been acquitted by reason of some technicality not involved in the merits of the prosecution and having no bearing on the question of probable cause (Stone v. Stevens, 12 Conn. 219; Fox v. Smith, 26 R. I.1); or the accused may have been acquitted when probable cause for his guilt has been shown, but the evidence failed to show his guilt beyond a reasonable doubt. [Philpot v. Lucas, 101 Iowa, 478; Godfrey v. Soniat, 33 La. Ann. 915; Britton v. Granger, 13 Ohio Cir. Ct. Rep. 281; Eastman v. Monastes, 32 Ore. 291; Anderson v. Friend, 85 Ill. 135; Saunders v. Baldwin, 112 Va. 431.] In none of these cases, except that of Sidelinger v. Trowbridge, 113 Me. 537, were the convictions had before police courts. That in Boogher v. Hough, 99 Mo. 183, was before the St. Louis Court of Criminal Correction. In a large majority of the cases the reversals and consequent acquittals were not the results of trials de novo before judges of courts of record or juries, but upon appeals where the reviews were of necessity confined to an examination of the record alone of the proceedings below. Under such circumstances the reasons adduced for the application of the rule are evident. But where, as in a police court, the jurisdiction is limited to suits for the recovery of fines, penalties and forfeitures for violations of city ordinances and the proceedings' are in the nature of civil actions (See. 1863, p. 939, R. C. of St. Louis, Rombauer, 1912; City of St. Louis v. Tiefel, 42 Mo. l. c. 593; St. Louis v. Knox, 74 Mo. 79; St. Louis v. Weitzel, 130 Mo. 600; Ex parte Hollwedell, 74 Mo. 395; Canton v. McDaniel, 188 Mo. 207), and whatever criminal character they possess is due more to their effect .than the procedure (Stevens v. Kansas City, 146 Mo. 460; Douglas v. Kansas City, 147 Mo. 428), and an arraignment or plea is not a prerequisite to the validity of the judgments rendered; and in the absence of an express ordinance, neither the Federal nor the State Constitution guarantees a trial — 341 — therein by jury (DeLaney v. Police Court, 167 Mo. l. c. 678), there is an absence of those characteristics which in the cases cited render pleas of former conviction, although subsequently reversed, conclusive evidence of probable cause in actions for malicious prosecution. While not urged as determinative of this case, because the precedents cited afford, in our opinion, ample support for the conclusion reached, but as an individual opinion, another reason deemed substantial may be urged against the effective interposition of a plea of probable cause in a case of this character. It is this: a judgment upon reversal becomes not only non-existent, but as though it has never been. This is true in regard to every relation sustained by a reversed judgment except in actions for malicious prosecution. Where, upon appeal, there is simply a review of the record in case's of this character, reason may exist for the propriety of the plea of probable cause, although based on a reversed judgment of conviction; but where, as here, there has been a full and fair hearing upon the merits in the appellate court, there exists no reason why the general rule should not be applied and the record or judgment of conviction held to have no evidentiary force. In accord, however, with what we deem to be a right application of the cases reviewed, we conclude that a showing of probable cause conclusive in its nature was not made, under all of the facts in this case, by the defensive interposition of the judgment'of former conviction. To hold otherwise would be to deny a right of redress to one who perhaps had been illegally arrested and unlawfully detained, simply because in a hurried and perfunctory hearing before a police court following such arrest he had been convicted, although upon a trial de novo the judgment of conviction has been held for naught. This holding is not to be understood as precluding the showing of a former conviction as prima-facie evidence of probable cause subject to rebuttal by proof of the reversal of the judgment of conviction in an appellate court after a full and fair hearing of all of the facts and any other relevant evidence, thus making the qtiestion of probable — 342 — cause, as it should he where disputed, one of fact for the jury upon all. of the evidence in the case. Repeating the elementáis applicable here as elsewhere: The question of probable cause is a mixed one of law and fact. Whether the circumstances alleged show probable cause is a question of fact to be found by the jury. Whether if true such circumstances amount to probable cause is a question of law to be determined by the court. [Brant v. Higgins, 10 Mo. 728; Hill v. Palm, 38 Mo. l. c. 22; Stubbs v. Mulholland, 168 Mo. l. c. 76; Carp v. Ins. Co., 203 Mo. l. c. 351.] Holding as we do that the judgment of conviction here does not constitute probable'cause, it follows that the acquittal of the plaintiff in the Court of Criminal Correction constituted, under our rulings, persuasive evidence of want of probable cause. (Sharpe v. Johnston, 59 Mo. l. c. 577, 76 Mo. l. c. 670; Sappington v. Watson, 50 Mo. 83; Casperson v. Sproule, 39 Mo. 39; Brant v. Higgins, 10 Mo. 728; Christian v. Hanna, 58 Mo. App. 37.] We are not unmindful of the fact that the doctrine is announced generally in Boeger v. Langenberg, 97 Mo. l. c. 397, that evidence of an acquittal of a crime does not tend to establish want of probable cause in an action for malicious prosecution. Barclay, J., in speaking for the court in that .case, uses this language: “This contention is so clearly contrary to the precedents that we dispose of it by merely referring to them. ’ ’ Williams v. Vanmeter, 8 Mo. 339, is the only Missouri case cited in support of the rule as thus announced. An examination of the opinion in that case, as well as the other authorities cited, does not support the unqualified announcement made in Boeger v. Langenberg. Judge Scott, who spoke for the court in Williams v. Vanmeter, said that “an acquittal is evidence of a want of probable cause to go to the jury, but of itself, and unaccompanied with any circumstances, would not be sufficient.” The other authorities cited in Boeger v. Langenberg are of like tenor. The rule, therefore, correctly declared, cannot mean more than as indicated in Williams v. Vanmeter, in the light of which the declaration in Boeger v. Langenberg should be read. The Kansas City Court of Appeals so holds in a discriminating — 343 — opinion by Smith, P. J., in Christian v. Hanna, 58 Mo. App. 37. The Springfield Court of Appeals in Eckerle v. Higgins, 159 Mo. App. 177, 140 S. W. 616, after a review of the cases, holds that evidence of an acquittal of a criminal charge on the merits will not suffice to establish a prima-facie case of want of probable cause in an action for malicious prosecution. This ruling, rightly interpreted, is not at a variance with that of this court in Williams v. Vanmeter, which is still the leading case on this subject, or of that of the Kansas City Court of Appeals in Christian v. Hanna. In fact, the Eckerle case, however much the reasoning may indicate a contrary opinion, is in exact accord with the doctrine announced in those cases and adopts the language of Christian v. Hanna in its conclusion. There is, therefore, no contrariety of opinion in this State on the subject, whatever may be the rulings thereon in other jurisdictions. The evidence of plaintiff’s acquittal, supplemented by other facts and circumstances, tended therefore to establish the essential element of a want of probable cause necessary, among others, to the successful maintenance of a suit of this character. The evidence disclosed that the criminal prosecution upon which this action was based was instituted by defendants; that same terminated in plaintiff’s favor'; that there was want of probable cause on the part of the defendants to believe plaintiff guilty of the offense charged; and that there was evidence of malice in the institution of the prosecution by defendants. [Ruth v. Transit Co., 98 Mo. App. 1.] These are the requisites to the maintenance of an action for malicious prosecution and in their presence the case should not be taken from the jury by a peremptory instruction. [Stubbs v. Mulholland, 168 Mo. l. c. 89.] The action of the trial court, therefore, in sustaining the peremptory instruction, so far as same was based upon the presence of probable cause as a defense, was not authorized. This necessitates a reversal, that a trial may be had in conformity with this opinion. It is so ordered. — 344 — Graves, C. J., and Woodson, J., concur in separate opinion by Graves, C. J.; Blair and Williams, JJ., concur in result; Bond and Faris, JJ., dissent