Summary
In Nelson v. Milwaukee, 57 Wis.2d 166, 203 N.W.2d 684 (1973), the trial court's order sustaining the city's demurrer was affirmed.
Summary of this case from Brown v. StateOpinion
No. 179.
Argued January 2, 1973. —
Decided January 30, 1973.
APPEAL from an order of the circuit court for Milwaukee county: JOHN A. DECKER, Circuit Judge. Affirmed.
For the appellant there was a brief by Eisenberg, Kletzke Eisenberg, attorneys, and Jerome F. Pogodzinski of counsel, all of Milwaukee, and oral argument by Mr. Pogodzinski.
For the respondent there was a brief by James B. Brennan, city attorney, and Thomas E. Hayes, assistant city attorney, and oral argument by Mr. Hayes.
This is an action to recover damages for the alleged wrongful arrest and imprisonment of the plaintiff.
The appeal is from an order sustaining a demurrer by the city of Milwaukee (hereinafter the "city") to the amended complaint of the plaintiff, Harry J. Nelson (hereinafter the "plaintiff").
On April 7, 1969, the plaintiff commenced an action against the city with the material parts of the complaint reading as follows:
"IV.
"That on or about the 16th day of November, 1968, while plaintiff was a customer lawfully upon the premises commonly known as Aldo's Pizza Restaurant, 2709 North Holton Street, Milwaukee, Wisconsin, an argument took place between two other customers, in which argument plaintiff had no part, said plaintiff was forcibly seized by Milwaukee Police Officers Michael Guerin, Gordon Waters and August Tjaaland.
"V.
"That as a result of said forcible seizure, plaintiff was falsely charged with participation in said disturbance and was forced to spend time in jail for no apparent, logical reason whatsoever, where he was booked, and appeared before the Honorable CHRIST T. SERAPHIM, who dismissed the action against him.
"VI.
"That as a sole and proximate result of the aforesaid negligence on the part of the defendant, through its agents, servants and/or employees, said plaintiff was caused to suffer damages in the sum of twenty-five thousand dollars ($25,000.00)."
The city demurred to plaintiff's complaint on the ground that it failed to state facts sufficient to constitute a cause of action and on February 10, 1970, the trial court sustained the demurrer, giving plaintiff twenty days' time in which to serve an amended complaint.
The material allegations of plaintiff's amended complaint provided:
"III.
"That on or about the 16th day of November, 1968, while plaintiff was a customer lawfully upon the premises commonly known as Aldo's Pizza Restaurant, 2709 North Holton Street, Milwaukee, Wisconsin, an argument took place between two other customers, in which argument plaintiff had no part, said plaintiff thereafter was negligently confined by defendant's Milwaukee Police Officers, Michael Guerin, Gordon Waters and August Tjaaland; that said confinement was negligent in that:
"(a) The plaintiff had not acted in any way which justified his confinement by defendant's agents, servants and/or employees;
"(b) That the aforementioned police officers failed to make a thorough investigation before they proceeded to confine the plaintiff;
"(c) That the aforementioned police officers failed to exercise sound judgment contrary to the judgment which an ordinary reasonable police officer would be expected to use when they acted to the same or similar circumstance.
"(d) That the aforementioned police officers negligently failed to give the plaintiff a reasonable opportunity to explain the facts concerning his own conduct; that the failure to permit the plaintiff to explain his actions constitutes sheer and pure negligence on the part of the police officers, whose duty it was as part of the impartial administration of the law to fully and fairly investigate all the facts which had any bearing on the plaintiff's innocence as well as guilt.
"IV.
"That as a result of the said negligent confinement, plaintiff was forced to spend time in jail for no apparent, logical reason whatsoever; that after he was booked, and appeared before the Honorable CHRIST T. SERAPHIM, the action again was dismissed;"
The city demurred to the amended complaint on the ground that it fails to state facts sufficient to constitute a cause of action. The trial court sustained the demurrer and ordered judgment dismissing the action on its merits. Plaintiff appeals from the order sustaining the demurrer.
Two issues are presented on this appeal.
1. Does plaintiff's amended complaint set forth sufficient facts to constitute a cause of action for negligent confinement; and
2. Was it error for the trial court to resort to the allegations contained in plaintiff's first complaint to determine that no valid cause of action was stated in the amended complaint?
In the case of Strong v. Milwaukee (1968), 38 Wis.2d 564, 157 N.W.2d 619, this court held that sec. 895.43(3), Stats., which precludes the bringing of a suit against a political corporation for the intentional torts of its officers or employees, rendered a complaint containing allegations of false imprisonment and false arrest of a party by a police officer of the defendant city demurrable. By dicta in the Strong Case it was stated at page 569:
"895.43 Tort actions against political corporations, governmental subdivisions or agencies and officers, agents or employes; notice of injury; limitation of damages and suits.
". . .
"(3) No suit shall be brought against any political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employes nor shall any suit be brought against such fire company, corporation, subdivision or agency or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions."
". . . [T]his court is not required to reach the question of whether a complaint couched in terms of negligent confinement, premised upon a good faith action of an officer, would circumvent the prohibitions of sec. 895.43, Stats."
Plaintiff's amended complaint alleges that he was confined by three officers of the city's police department and that as a result of this he "was forced to spend time in jail. . ." Although the complaint prefaces these allegations by stating that the confinement was "negligent" it is obvious from the allegations of the amended complaint that the officers intentionally arrested, booked and jailed the plaintiff. In Strong, the plaintiff contended that the tort involved was more in the nature of negligence in that it arose out of a "failure to make a reasonable inquiry." The court found the allegation in that complaint that the plaintiff was, "arrested and imprisoned" was sufficient to demonstrate that the essence of the action was one for the intentional tort of false imprisonment and in that regard there is little difference between that and the complaint in the present case, alleging that the plaintiff was booked and forced to spend time in jail.
The amended complaint, in essence, alleges that the plaintiff did nothing to justify his confinement, that the officers failed to investigate and failed to permit plaintiff to explain his actions. The only reasonable inference drawn from these facts is that the officers intentionally arrested the plaintiff.
Therefore, having determined that the imprisonment was an intentional tort, it follows that direct action against the city is precluded by sec. 895.43(3), Stats.
Use of allegations of first complaint
. The trial court was of the opinion that in deciding whether plaintiff's amended complaint set forth facts sufficient to constitute a cause of action, it could properly resort to the allegations contained in the first complaint.The general rule as to which facts may be resorted to in determining whether a complaint sets forth sufficient facts to constitute a cause of action was stated most succinctly in the case of Ryan v. First Nat. Bank Trust Co. (1940), 236 Wis. 226, 232, 294 N.W. 832:
"It should not be necessary for us to point out that when a party demurs to a pleading he raises sufficiency of the allegations contained in the pleading demurred to, to state a cause of action. The demurrant may not import into the statement of one cause of action the allegations of fact contained in another pleading for the purpose of making it or attempting to make it defective or insufficient."
This court has reaffirmed the general rule as recently as Thomas v. Kells (1971), 53 Wis.2d 141, 191 N.W.2d 872.
Peculiarly relevant to the facts present in the case at bar is Riley v. United Finance Co. (1940), 234 Wis. 389, 291 N.W. 392, where the defendant was appealing from an order overruling his demurrer to plaintiff's amended complaint. The defendant contended that because facts alleged in the amended complaint, which itself was based on a new cause of action, were inconsistent with the facts alleged in the original complaint, the allegations of the amended complaint were thereby negated. In putting to rest this contention the court, at page 392 of the decision, stated:
"These claims cannot be sustained. The facts which appear in the original complaint or from the note attached thereto are not involved and cannot be taken into consideration in passing upon the demurrer to the amended complaint. The latter, which is an entirely new complaint without any reference therein to the original complaint, is complete in itself and superseded the former complaint so that the allegations therein were no part of the amended complaint and the sufficiency of the facts alleged therein to constitute a cause of action must be determined solely upon its allegations."
Based upon the aforementioned authority, the trial court should not have considered the allegations of fact contained in plaintiff's initial complaint. However, because the confinement for which recovery is sought in this case was alleged to be intentional the trial court acted properly in sustaining the city's demurrer to the amended complaint without leave to amend.
By the Court. — Order affirmed.