Opinion
No. 21576.
June 4, 1951.
APPEAL FROM THE COUNTY CIRCUIT COURT, JACKSON COUNTY, JAMES W. BROADDUS, J.
Trusty, Pugh Green and Donald T. Patterson, all of Kansas City, for appellant.
Kemp, Koontz, Clagett Norquist, William E. Kemp and Thomas J. Wheatley, all of Kansas City, Butler Disman, Kansas City, of counsel, for respondent.
This suit was instituted by the appellant as plaintiff in the trial court for damages for false arrest. Compensatory and punitive damages were sought. Verdict and judgment were for the plaintiff for $5000 compensatory damages only. The court sustained the defendant's motion to set aside the verdict and judgment and to enter judgment for defendant in accordance with his motion for a directed verdict made at the close of all the evidence, and sustained the defendant's motion for a new trial, the latter ruling to take effect "only in the event that the ruling of the court on defendant's motion for judgment is reversed on appeal." The present appeal was taken from the order of the court entering judgment for defendant, as aforesaid, and from the said order granting defendant's motion for new trial.
The appeal in this case was first lodged in the Supreme Court. That court transferred the cause here on constitutional grounds.
In substance the plaintiff's second amended petition alleged that his wife was employed at the times in question in defendant's home, and that the plaintiff was rightfully on defendant's premises visiting plaintiff's wife. He further alleges that he was employed by the Veterans Administration, has always conducted himself in an upright, honest and lawful manner, and until the incident complained of the bore a good reputation in and about Kansas City, Missouri, and elsewhere, as a moral, honest and upright citizen and enjoyed the respect and good will of all persons who knew him in his community and locality. He avers further that on August 11, 1946, defendant unlawfully, wrongfully, wantonly and maliciously and without warrant for arrest, and with intent to injure the plaintiff, caused police officers to enter the defendant's home and into the room which plaintiff occupied with his wife, and when plaintiff was partly disrobed, and caused the police officers, without authority and against his will to take him by force to Police Station No. 4 in said city, and to lock him up there in jail and unlawfully and wrongfully withhold him until 10:00 o'clock in the morning; that no charges were ever preferred against the plaintiff, nor any warrant issued for his arrest, and that he was held solely through the acts and conduct of the defendant. It is further alleged that by reason of the premises the plaintiff was caused to suffer and hereafter will suffer permanent fright, nervous and mental shock, and much pain of body, mental anguish, shame, humiliation and disgrace. The prayer was for compensatory damages in the sum of $10,000, and on account of the wanton and malicious conduct of the defendant pleaded, punitive damages in the sum of $10,000 was prayed for.
The answer was in the nature of a challenge of the sufficiency of the petition to state a cause of action and a general denial of its allegations. The answer further alleged that the defendant resided at 1240 West 57th Street in Kansas City, Missouri, with members of his family, including Sylvia Reaves, who at that time was the wife of the plaintiff, and who was then and still is a domestic servant and maid in the defendant's home. The answer further alleges that on the day in question plaintiff had consumed large quantities of intoxicating liquors and was in a drunken condition while on defendant's premises; that while in that condition and upon said premises plaintiff assaulted his wife Sylvia Reaves, injuring, striking, choking and threatening to kill her, tearing her garments from her and forcing her to flee from her room and sleeping quarters, and placing her in fear of continued attacks and threats upon her; that Sylvia Reaves sought refuge in other parts of the premises; that her apprehension was communicated to the defendant by his minor son, whereby she requested, sought and demanded protection from the plaintiff, from his conduct and threats, and continuation thereof. The answer further alleges that such conduct of the plaintiff constituted a breach of the peace upon the premises of the defendant under Section 4636, R.S. Mo. 1939, R.S. 1949, § 562.240, and under certain ordinances of Kansas City, Missouri, pleaded. It is further alleged that plaintiff's actions described also threatened the safety of the defendant's household, family and minor son; that it was necessary that the plaintiff be restrained and removed from the premises by police officers of the city to avoid damage to the defendant's property and to protect the lives, safety and well being of the defendant, members of his family, household and Sylvia Reaves. Defendant further states that he and his wife were thus placed in serious concern for their safety, that of their son, Sylvia Reaves, and their home, and to preserve the peace, and for their protection, and the presence of the police officers was necessary to remove plaintiff from the defendant's home, and to terminate the breach of peace there occurring, and continuation thereof; that there was probable cause and justification for the removal of plaintiff from said premises by the police officers. Further answering and in the alternative, defendant states that under Sections 7651 and 7652 of the R.S.Mo. 1939, as amended by Laws of 1943, R.S. 1949, §§ 84.420 to 84.440, the police officers of said city have authority to arrest for misdemeanors not committed in their presence where they have probable cause to believe that a misdemeanor has been committed, and that the officers arresting plaintiff at the time and place in question did have probable cause to believe from the facts and circumstances related to them by the defendant, and from the circumstances apparent to the officers at the time of their arrival at the defendant's home, and from the appearance, attitude and actions of Sylvia Reaves, that a misdemeanor, that is, a breach of the peace, had been committed by the plaintiff in the defendant's home, and from said appearance were further of the opinion that additional and repeated breaches of the peace would occur if plaintiff were not removed from the defendant's home and held in jail until he recovered from his intoxicated condition; that said officers had probable cause to believe that a misdemeanor had been committed, and arrested the plaintiff because of, such belief, thereby making said arrest lawful.
The plaintiff and his wife Sylvia Reaves had both been previously married. Plaintiff had been divorced from his first wife. For five or six years prior to the incident here involved Sylvia Reaves had been employed as a cook and maid in the defendant's home. Plaintiff and Sylvia had arranged with the defendant and his wife to occupy quarters on the third floor of the defendant's home. The accommodations consisted of a bedroom, living room and bath. The above arrangement seemed satisfactory as between the defendant and his family and the plaintiff and his wife. Plaintiff and his wife were permitted to keep beer on the premises and they customarily drank beer there in the evenings. However, for some time before the evening of August 11, 1946, there had been some quarrels between the plaintiff and his wife, growing out of her constant complaints of fatigue, and plaintiff had urged his wife to quit her employment. He had made some efforts to get another place of residence and Sylvia had notified her employers of their intention.
On the evening of August 11, 1946, plaintiff returned from his work about 9:00 or 9:30 p. m., as usual. According to his testimony each consumed only two bottles of beer before and during their dinner, which Sylvia had prepared for them. Defendant and his wife and their son were out for the evening and the plaintiff and Sylvia were alone on the premises. They retired and an argument ensued over the fact that Sylvia complained of fatigue. They discussed her giving up her job and the fact that she never had time "to do anything". The plaintiff stated "Our domestic trouble was getting worse and worse all the time." Plaintiff heard a car arriving and Sylvia went into the bathroom and stayed there for a long time. Plaintiff heard her knocking on the floor and wanted to know the cause of her staying there so long. He went into the living room and obtained a key and opened one of the doors to the bathroom. Sylvia seemed surprised and a little panicky and walked by the plaintiff. Plaintiff asked her what was the trouble and she did not answer. She proceeded on down the hallway and downstairs and could be heard in conversation with some one whom plaintiff recognized as the son of the defendant, who had just parked his car. Shortly thereafter the defendant drove up in his car with his wife, and entered the house, remaining downstairs. Plaintiff heard his wife talking with defendant. A few minutes later a scout car entered the driveway and plaintiff returned to his bed. An officer then came upstairs and told the plaintiff to get on his clothes and go with him. Plaintiff asked for time to dress and walked down with the officer and saw the son standing on the second floor landing and the defendant on the first floor in the living room. The defendant called one of the police officers to one side of the porch and talked with him.
Plaintiff further testified that in the meantime, the other officers placed him in the scout car and took him to the 63rd Street Police Station, where he was kept in a cell until about 1:30 p. m. There was no chair, mattress or pillow in the cell and there was only a cot of steel bars afforded for him to sit or lie on. In the meantime he had nothing to eat or drink. Upon being discharged he found no place in the vicinity where colored persons could be served food, and took the street cars and busses to a place on 18th Street, where he was able to drink some coffee. Later he arranged through Sylvia to get some clothes to him, but was told by her at the same time that she had arranged with an attorney to get a divorce and could not talk to him.
On the next morning plaintiff was able to go to work, although late, and reported to his supervisor the circumstances and he was given some treatments for the soreness sustained in sitting and lying on the metal cot in the cell. He testified that others at his place of employment had thereafter received promotions but he had not, but there had been some reports of inefficiency on his part. He also complained of taunts and "razzing" from his coemployees, which caused him embarrassment. Later he was sent to the Veterans Administration hospital in Topeka, Kansas, about October 15, 1948.
On cross-examination plaintiff testified that on the evening of August 11, 1946, his wife said she had been out that afternoon drinking beer with friends. He said the friends afterward denied that. He had left work early and offered to meet his wife some place and go out for the evening, but she declined, desiring to stay home and do some of her laundry. He arrived home about 8:30 p. m. After eating their supper and drinking some beer, they retired at about 10:00 or 10:30 p.m. They quarreled about their personal relations. She became angry, got up and went to the bathroom. He denied choking, striking or pushing her at that time. Later he said before he got into bed, he had pushed his wife back on the bed. Later he said he "shoved her onto the bed." They were then arguing about her quitting her job and he tried to "quiet her down". When confronted with his deposition he admitted the quarrel was over marital relations concerning which he was making certain demands and she was complaining of being "too tired". In his deposition he had testified:
"A. I pushed her down on the bed, I know at least twice, it could have been three times.
"Q. Was that when she tried to get out of bed? A. Yes.
"Q. Why did you do that? A. Just to — well I was trying to get her for our personal relations. * * *."
During the quarrel, he said, she wanted to fight and wanted to get up. "I just pushed her down a couple or three times." They heard a car coming and his wife got up and went into the bathroom. He heard her knocking on the floor, got up to see what the trouble was, and, getting no response from his wife and finding the doors locked, he got a key from the dresser drawer, and unlocked one of the doors and went into the bathroom. His wife went out past him, carrying an iron curtain rod in her hand and proceeded downstairs. He said she was not crying or screaming. In his deposition he had said "She just screamed and hollered". He had also said in his deposition his wife was intoxicated during the evening, but on trial admitted that she was not.
In behalf of plaintiff the police sergeant testified that one of the cars under his supervision received a call to proceed to the defendant's residence and the witness went there in one car and two officers went in another car. Upon arriving there defendant was in his front yard and told witness that there was a colored man creating a disturbance in the home and defendant desired witness to investigate the trouble, "probably take him in custody." Defendant pointed the way into the house and on the way upstairs, a young man directed him to the quarters on the third floor. On the way up he saw a colored woman leaning on the bannister on the second or third floor. She was only partially dressed and was crying and acting in a hysterical manner. The witness knew nothing about any disturbance except that the defendant had told him of it. The plaintiff's door was closed. Witness knocked on the door and plaintiff appeared and witness told him to get on his clothes and come with him. The smell of alcohol was on the plaintiff's breath, "It was definite". He seemed to be slow-motioned. After he had dressed he seemed to be "unsteady" on his feet and in the opinion of the witness the plaintiff was under the influence of liquor. He was taken downstairs and placed in the car with the other two officers and taken to the 63rd Street Police Station. On the way out of the home, witness told defendant that if he wished to place charges against plaintiff to come down early in the morning as plaintiff would be released after a certain length of time if no charges were made. He said defendant stated he would consult a relative who was his attorney, and that if charges were made he himself or his attorney would handle the same. Defendant did not definitely say he would file any charges. Witness had already sent the plaintiff on with instructions to hold him for safekeeping, acting upon the witness's own judgment as a police officer. He testified:
"Q. And the acting and that judgment was based on the fact that Mr. Rieger had told you there was a man that created this disturbance in his house and the appearance of the colored woman in the house and the appearance of the man himself? A. That is right.
"Q. And the condition of the man himself? A. That is right.
"Q. Mr. Rieger never did tell you what to do with the man? A. I don't believe so.
"Q. That was a matter left to you as a police officer? A. That is right."
The above witness stated he had no warrant for plaintiff's arrest and seldom does have, but plaintiff was taken in custody because of defendant's complaint. He said no charges were later filed by anyone, but the plaintiff had been held for safekeeping.
On behalf of the defendant, plaintiff's wife testified that she had no drinks during the evening of the episode described; that plaintiff drank four bottles of beer before and during his supper, and two later; that after she laundered some of her clothes, they retired; that plaintiff did not seem intoxicated at the time; that she was awakened by plaintiff choking her and saying: "I'm going to kill you. I'm sick and tired of your independence. I'm going to kill you." She screamed, fought and kicked him away. Before reaching the floor he tore off her nightgown and started quarreling. She was so scared she got back in bed. He said: "I know what this is going to do. I know you intend to get a divorce. That is what I intend to do is to kill you." She started to go to the bathroom and he pushed her back in bed. He then let her go to the bathroom and followed her in. When he left to get a cigarette, she locked both doors and put on her slip, which was hanging nearby. She also got an iron curtain rod. When he unlocked the door and came in she swung at him with the curtain rod, got past him and "flew" down to the second floor. He was "like a mad man". She hid in the room of the defendant's daughter. None of the defendant's family was home. The son Jimmy soon arrived and she called him and told him that plaintiff was crazy and threatened to choke and kill her. The son then called defendant and his wife by telephone at the Country Club and plaintiff's wife talked to defendant. She told him that plaintiff had threatened to kill her; that she "was scared to death of him", and that he (defendant) had to get her some protection and get plaintiff out of the house. Defendant told her to "go in our suite and lock the door and we'll be home right away". When the defendant and police arrived, witness was still dressed only in her slip and still held the curtain rod in her hand. When the police asked her where her husband was she said "Upstairs", and pointed to the third floor. Defendant remained on the first floor.
The wife of the defendant testified that she answered the telephone the evening in question at the Country Club, was told by her son that the maid was in trouble and that plaintiff was hurting her. He told her also that "Lonnie" (Sylvia) had run downstairs and asked what should be done. Witness asked to talk to "Lonnie" and said "Lonnie" seemed excited and told her the plaintiff had threatened to kill her. Witness then called defendant to the telephone. They left immediately after the conversation. On the way home they discussed what they should do and thought they had better drive by the police station and pick up an officer to go into the house with them, that "After all, our son was in the house with `Lonnie', too." They stopped at the 63rd Street Police Station, where defendant asked for help and the officers drove to the home, arriving about the same time as the witness and defendant. She ran into the home and to the second floor where she saw "Lonnie" barefooted, wearing only a slip and in a very hysterical condition. After the officers took the plaintiff away, witness accompanied "Lonnie" to her quarters and saw her nightgown on the floor, badly torn.
Defendant's son corroborated his mother as to "Lonnie's" appearance and nervous state when she had fled to the second floor. He telephoned to his parents immediately at the Country Club. When they arrived and the police officers came, defendant indicated the third floor as the place where plaintiff was. Defendant remained downstairs. Witness had heard plaintiff quarreling several nights before.
Defendant, in his own behalf, described the telephone conversation with plaintiff's wife on the evening of the difficulty. He said she was highly nervous, saying that she had just had a fight with the plaintiff, who had threatened to kill her, and she wanted to know what to do to protect herself, and wanted plaintiff out of the house. Defendant knew his own son was also at home and had first done the calling for "Lonnie". Fearing harm to his son and property he started for home immediately, stopping at the 63rd street Police Station for police protection. He and Mrs. Rieger arrived at the home about the same time as the officers. Defendant told the police "Let's hurry. There is a colored man having a fight with our maid." He told them briefly of what had been reported to him by telephone, but gave them no directions except to say he did not want any more disturbance, "wanted him out of our home." "Lonnie" was only partly dressed and was extremely nervous, although usually she was very calm and patient. The police, on their own initiative and without instructions from defendant, removed the plaintiff.
Upon cross-examination defendant, over his objections, testified to being president of a bank and owner of substantial property. He said he did not leave the first floor of the premises while the police were there, and did not tell the officers to lock defendant up because he was coming down to make charges against him in the morning. He told them to see what the disturbance was and to get the man off the premises. When the officer brought plaintiff down, the officer asked witness what should be done, and the defendant said as far as he was concerned "We just want the man off our premises because he is disturbing our peace in there."
The court submitted the case to the jury under instructions covering both compensatory and punitive damages.
Plaintiff contends that the court erred in granting a new trial in the alternative; that such order is inconsistent with the order entering judgment for defendant on the motion, under the statutes and rules of the Supreme Court; that there was ample evidence to justify submission of punitive damages and of defendant's financial worth; that the order for new trial on the ground that the verdict was against the weight of the evidence was in excess of the court's jurisdiction and was an abuse of its discretion.
It was recently said in Hughes v. St. Louis Nat. League Baseball Club, Inc., 359 Mo. 993, 224 S.W.2d 989, 992, that: "when the Court believes that the motion to set aside should be sustained but also finds error in instructions, it would be best for it to sustain the motion to set aside and also to sustain the motion for new trial, making its ruling thereon in the alternative (specifying its grounds for granting a new trial) to be effective in the event its judgment entered on sustaining the motion to set aside be reversed." The court cited Johnson v. Kansas City Public Service Co., 358 Mo. 253, 214 S.W.2d 5, and Montgomery Ward Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147. The court added: "It is suggested that what we said in the Johnson case about such an alternative ruling was dictum but, if so, it was correct dictum and we now adopt it". The appellant in the instant case argues that such ruling, too, was obiter dictum, based on obiter dictum of the Johnson case, supra. The ruling in the Hughes case, supra, is binding on this court as to the contention of inconsistency here claimed. The point is overruled.
Furthermore, in the same connection, if the ruling of this court in the case at bar affirms the order of the trial court in setting aside the verdict and judgment for plaintiff and entering judgment for defendant, the trial court's order granting a new trial in the alternative if its order entering the judgment be reversed, is automatically disposed of unless this court on appeal should, under Section 113 of the Code, R.S. 1949, § 510.290, remand the case on proper grounds shown of record.
The trial court found and assigned as one of its grounds for setting aside the verdict and judgment in favor of plaintiff, and entering judgment for defendant, that "Upon plaintiff's own testimony plaintiff was guilty of a disturbance of the peace as defined in the statutes of Missouri and constituting a misdemeanor under such statutes and that at the time complained of in plaintiff's petition plaintiff's arrest was lawful." If that ruling be correct, we believe it to be conclusive of this appeal.
Section 562.240, R.S.Mo. 1949, provides: "If any person or persons shall willfully disturb the peace of any neighborhood, or of any family, or of any person, by loud and unusual noise or by offensive or indecent conversation, or by threatening, quarreling, challenging or fighting, every person so offending shall, upon conviction, be adjudged guilty of a misdemeanor."
Section 84.440, R.S.Mo. 1949, provides: "In case any police official shall have reason to believe that any person has committed, or is about to commit within the city * * * any breach of peace or violation of law and order * * * said police official may cause such person to be arrested by any member of the police force. * * *"
Plaintiff admitted that while occupying quarters with his wife in defendant's home on the evening in question and during the absence of defendant and his family, the plaintiff and his wife had a serious quarrel; that he was trying to force upon her his demands of a marital nature, over her continued protests of physical fatigue; that he shoved or pushed his wife two or three times onto their bed; that his wife wanted to get up and wanted to fight and finally repaired to the bathroom and locked the doors; that he heard a car come onto the premises; that he heard her knocking on the floor; that he forced his way into the bathroom by means of a key obtained from their room; that when he entered she appeared, clad only in a slip, carrying a curtain rod in her hand and as she went passed him she "screamed and hollered", and went to the second floor, where he later heard her talking to defendant's son, who had just arrived home, and later he heard other cars come up and heard his wife talking to defendant and others. Plaintiff locked his door and got back in bed.
Plaintiff's witness Ober, police officer, testified that he went to the defendant's home in response to a call, and was told by the defendant that a colored man was creating a disturbance in the home, and was asked to investigate and "probably take him into custody"; that witness was directed to the third floor; that on the way up he saw plaintiff's wife leaning on the bannister, only partly dressed, crying and hysterical, and she could only sob when talked to by the officers; that he found plaintiff's door locked; that when plaintiff came to the door, witness could smell the odor of alcohol on his breath "very definitely"; that plaintiff was slow-motioned and later, when dressed, the plaintiff was unsteady on his feet and under the influence of liquor; the witness placed plaintiff in custody of two other officers, who left with the plaintiff for safekeeping.
That the peace of defendant and his family was disturbed cannot be denied. Considering plaintiff's evidence alone, it is shown that the defendant and family left their home to attend, their social engagements for the evening and the son returned to find plaintiff's wife, the family maid, seeking refuge in the lower rooms reserved for the family, hysterical and crying. dressed only in her slip, having run from her quarters on the third floor to escape the cruel treatment of her intoxicated husband. The summoning of defendant and his wife from their club to their home, their appeal to the police for protection on the way, and arrival at the home with the police officers, the hysterical condition in which they found plaintiff's wife in their private rooms upon their arrival, the fear of harm to their son, and to themselves and to their property because of plaintiff's continued presence in the house, the present drunken condition in which the officers found the plaintiff, and the removal of him by the police, all contributed to constitute a breach and disturbance of the peace of the defendant, his family and household under the statute.
Whether the arrest was made at the instigation of the defendant or on the judgment of the police officers who were called in for protection, they all had reason to believe that he had committed a breach of peace, and a disturbance of the peace of defendant and his family, and still continuing to do so. See Teel v. May Dept. Stores, 348 Mo. 696, 704, 155 S.W.2d 74, 78, 137 A.L.R. 495. It is said in Restatement, Torts, Vol. 1, pp. 249, 254:
"Subject to the rules stated in Sections 127 to 136, a private person is privileged to arrest another without a warrant for a criminal offense, * * * (c) if the other, in the presence of the actor, is committing a breach of the peace or, having so committed a breach of the peace he is reasonably believed by the actor to be about to renew it, * * *.
"If the actor, by the use of any of his senses, perceives that an act is being done, and forthwith investigates and finds that the act constitutes a breach of the peace, he is privileged to arrest under the statement in Clause (c)."
Whatever presumption arose by the absence of a warrant or formal charge or conviction, it was completely rebutted when plaintiff's own evidence supplied the proof of his guilt of a misdemeanor. As was said in the early case of Bierwith v. Pieronnet, 65 Mo.App. 431, 433: "If the arrest of the plaintiff was lawful, an action for false arrest will not lie, and it can make no difference at whose instigation it was made or what the motive was. This must be so in reason, for there can be no trespass where the arrest is by warrant of law."
The court was correct in its ruling that the plaintiff, by his own evidence, was guilty of a disturbance of the peace as defined in the statutes of the state and constituting a misdemeanor, and that the arrest was lawful. For that reason alone it was proper for the court to set aside the verdict and judgment for the plaintiff and to enter judgment for the defendant. It is not necessary to discuss the other points raised on the appeal.
The judgment for defendant entered on defendant's motion therefor is affirmed.
CAVE, J., concurs.
BROADDUS, P. J., not sitting.