Opinion
No. 28514.
April 21, 1953. Rehearing Denied May 15, 1953.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, JAMES E. McLAUGHLIN, J.
Barksdale Abbott and Victor A. Wallace, St. Louis, for appellant.
Michael B. Gershenson, St. Louis, for respondent.
This action was originally brought in two counts, one for false arrest and the other for slander. It was against three defendants, but during the course of the trial the cause was dismissed as to all defendants except the John Bettendorf Market, Inc. As to this defendant the count in slander was dismissed and the case was submitted to the jury on false arrest only. The occurrence that gave rise to the suit was the arrest of the plaintiff which came about when she was suspected of stealing a check, forging an endorsement thereon, and cashing it at the defendant's store. The jury returned a verdict for $900 in favor of the plaintiff and the defendant prosecutes this appeal.
The facts shown by the evidence were that defendant operated a retail grocery market and in the course of its business cashed checks for its customers. It had cashed, on a number of occasions, government checks payable to Loretta Nash, which she received monthly. Each of these checks was for the sum of $60. On or about November 2, 1949, a check payable to Loretta Nash in the sum of $60 was cashed by the defendant. The day following Mrs. Nash's husband came in and told Mr. Hurst, the defendant's manager, not to cash a government check payable to his wife as it had been stolen. Hurst told Nash that he had already given some one cash for the check and that it had been sent to the bank for deposit. He described as nearly as he could the appearance of the woman who had presented the check to him. The check was obtained from the bank and the defendant's manager notified the police of his conversation with Nash and turned the check over to them. Nash had seen a woman apparently examining the mailbox at the house where he lived and he concluded that she was the one who had taken the check. He undertook to try to find this woman.
While the police officers were in defendant's store talking to its manager Nash was also there and was introduced by Hurst to the police officers. The police asked him if he knew where the suspected woman lived and he told them that he did and went with them in their automobile to the plaintiff's residence on Missouri Avenue.
The plaintiff was going out the door of her home when she was stopped by the police officers who were not in uniform. They took her to their car where Mr. Nash was seated and asked him if she was the woman, to which Mr. Nash replied "Yes". With that the officers returned with Mrs. Checkeye to her home and one of them left to get Mr. Hurst, the defendant's manager.
This officer returned shortly with Mr. Hurst and introduced him to Mrs. Checkeye. Hurst asked the officer to have her put on her coat, which she did, and then according to the plaintiff she asked Hurst if the suspected woman wore glasses and according to her he replied, "You could have taken them off for the short time you were in the store." According to Hurst the plaintiff said nothing to him and he said nothing to her. He could not identify the woman as the one who had cashed the check and so told the police officers.
On the strength of the statement of Mr. Nash that the plaintiff was the woman whom he had seen at the mail box the police took the plaintiff to the police station where she was questioned and requested to give specimens of her handwriting. After about three hours she was released and requested to report at police headquarters on the day following for a lie detector test. She reported the next day and submitted to the test which proved to the satisfaction of the police that she was not guilty and she was released. No warrant for the plaintiff's arrest was ever issued or applied for.
At the close of the evidence the trial court overruled the defendant's motion for a directed verdict and the defendant here contends that it erred in so doing. The plaintiff, of course, was required to prove that she was unlawfully caused to be arrested by the defendant in order to make a case properly submissible to a jury. In meeting the burden so placed upon a plaintiff it is not necessary to present evidence that the arrest was specifically ordered by the person sought to be charged, but there must at least be evidence that the defendant instigated it, assisted in the arrest, or by some manner "directed, countenanced, or encouraged" it. Hoock v. S.S. Kresge Co., Mo.Sup., 230 S.W.2d 758; Hoock v. S. S. Kresge Co., Mo.App., 222 S.W.2d 568; Vimont v. S.S. Kresge Co., Mo.App., 291 S.W. 159; Snider v. Wimberly, 357 Mo 491, 209 S.W.2d 239, 242.
The words "instigate" and "countenance", as they are employed in such cases have been defined in Snider v. Wimberly, supra, which states that "instigate" as it is here used means "to stimulate or goad to an action, especially a bad action". It is to some extent synonymous with the word "abet". The word "countenance" means to "encourage, favor, approve". It is, of course, the contention of the plaintiff that her evidence met the requirements laid down by the cases above cited.
It is urged that the evidence that the defendant's manager called the police and that he described to Nash the party who had cashed the check and suggested to Nash that he find out the address of the woman he had seen going through his mailbox, and that he arranged for Nash to meet the police and that he went with the police, at their request, to see the plaintiff, where he asked that she be directed to put on her coat and made the statement regarding eye-glasses as related above, was adequate to make a submissible case. However, in none of these actions did he direct the police to do anything. There is nothing to indicate that he favored or approved the arrest of plaintiff. On the contrary, he said he could not identify her; nor did he instigate any action on the part of the police leading to the arrest of the plaintiff. We stated in Vimont v. S. S. Kresge Co., supra [ 291 S.W. 160]:
"* * * if the defendant directs a police officer to take the plaintiff into custody, he is necessarily liable to respond in damages for a resulting false imprisonment; but if, to the contrary, the defendant merely states the facts to the officer, leaving it with him and his superiors to act or not, as they see fit, the defendant is not liable. The rule is eminently founded on reason. To hold to the contrary would entirely destroy the right of the humble citizen, to whom the patrolman on the beat or the town marshal or village constable represents the majesty of the law and to whom for many reasons the advice of counsel may be unavailable, to tell his troubles and difficulties to such officer, and to trust to the power and discretion of the legally constituted authorities to secure for him the rights which the law guarantees him."
In the case of Snider v. Wimberly, supra, the defendant had surprised a prowler in his store one night. He told the police that it was too dark in the store for him to identify the man but he thought it was Snider. Snider was arrested and after being cleared of any offense he brought suit against Wimberly for false arrest. The court in its opinion points out that the defendant had never said that Snider was the prowler but only said that he thought he was. It was stated:
"By this statement, defendant did not positively identify plaintiff as the prowler or actually make a charge of any offense against plaintiff, or in any way tell the police what to do about the matter. Therefore, plaintiff's contention, that `there was nothing in this situation that involved any discretion on the part of the police' is fallacious. Considered most favorably to plaintiff, we think this statement was in the nature of information calling for their investigation of what defendant thought before taking action and was not a request for his arrest."
The above facts, which were insufficient to make a case of false arrest for Snider, presented stronger evidence than that before us in the instant case where the defendant's manager never expressed any opinion regarding the guilt of the plaintiff and did nothing that could be construed as influencing the police to make the arrest.
For the reasons stated, the court erred in overruling the defendant's motion for a directed verdict, and it is the recommendation of the Commissioner that the judgment be reversed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly reversed.
BENNICK, P. J., and ANDERSON and HOLMAN, JJ., concur.