Ahern v. Collins

Eagg, Judge,

delivered the opinion of the court.

In order that the view taken of this case may be clearly understood, it will be necessary first to notice the petition. It has been argued here upon the theory that it was drawn with the intention of setting out a cause of action altogether similar to what under the common law system of practice would have been called an action for malicious arrest or malicious prosecution. The same idea seems to have been entertained in the trial of the cause in the court below. After averring the fact that the defendant wrongfully and maliciously procured plaintiff to be arrested by the police officers in the city of St. Louis, it says, “ and thence to be forcibly conveyed by them through the public streets of the city of St. Louis a long distance, to-wit, the distance of one mile and over, to a certain police station, and unlawfully, maliciously and without any probable cause illegally did cause plaintiff *150 to be detained a long space of time, to-wit, for half an hour, when plaintiff was fully discharged without trial or legal examination,” &g. ; “ wherefore he claims damage,” &c. The true object is to ascertain, not whether this averment would bring it within any one of the different forms of action as they existed at common law, because the use of them has been entirely superseded by our own statutes, .but as to whether it contains a sufficient statement of facts showing a right upon the part of plaintiff to recover.

Malicious arrest ought not to be confounded with malicious prosecution. It is true that the mode of proceeding for both, previous to the change of practice in this State, would have been by an action on the case, and it is likewise true that malice and want of probable cause are necessary ingredients of both; but the word “arrest” more properly applies to the taking of a party into custody under civil process, and the action for malicious arrest was instituted only where the plaintiff had been maliciously and without probable cause taken into.custody for debt, or where there was a malicious holding of a party to bail. The essential ground of an action for malicious prosecution, on the other hand, consisted ’ in the fact that there been a legal prosecution against the plaintiff without reasonable or probable cause. This is said to be the essential ground of the action, because the other necessary ingredient (malice) might be inferred from the want of probable cause. It is very clear that the facts stated in this case are not sufficient to have sustained either of the actions above referred to, but we think that an illegal imprisonment was sufficiently averred. It makes no difference whether the restraint of the person is caused without process, or under color of process wholly illegal (1 Chit. Prac. 48) ; it is" a trespass against the person, for which the plaintiff is entitled to compensation in damages upon the necessary proof of the facts.

Tile counsel for the appellant insists that there was no arrest in this case — or, to speak with more accuracy, there was *151 no actual apprehension of the plaintiff by the officers — and that nothing but words were used to procure his attendance at the police station. Let us see what the testimony is.

Joseph Reilly, a police officer, says: “I dont know the plaintiff, and first saw him at his house when we arrested him. The defendant came to the police station-house and wanted plaintiff arrested, and the captain sent me and another (now dead) with Collins for that purpose.” Again he says, after reaching the house of plaintiff: “ The defendant did not go in, but remained close by. We went into the house, and found old man Ahern partly undressed and lying on the bed ; it was about eleven o’clock. We told him he must get up and go with us; he was loth to go, and said he was a peaceable and orderly citizen, and was unwell, and we had no authority to arrest him. We told him that we were going to take him, and that he must get up and go with us. He then got up and put on his coat and went with us ; he appeared to be quite feeble and seemed to be unwell. It was a very warm day,” &c.

It is admitted that bare, words will not constitute an arrest or imprisonment, but words coupled with a threat or force may be sufficient to place a party in restraint. It was held in the case of Johnson v. Tompkins et al., 1 Bald. 571, that “ it is not necessary to constitute false imprisonment that the person restrained of his liberty should be touched or actually arrested, if he is ordered to do or not to do the .thing, to move or not to move against his own free will, if it is not left to his own option to go of stay when he pleases, and force is offered * • * * * * or there is reasonable ground to apprehend that coercive measures will be used if he does not yield.” The party under such circumstances need not wait for the actual application of force, but will be considered in a state of actual imprisonment. The testimony discloses the fact that the plaintiff was an old man, unwell and very feeble, and he is told by the officers (two in number) that they came to take him, and he “must get up and go with them.” Is there any wonder that he yielded under such circumstan *152 ces ? No clearer case of an actual taking of a person into custody could be made out.

In asking,.the court to instruct the jury as to the law of the case, both parties seem to have gone, upon the idea that it was an action either of malicious arrest or malicious prosecution ; and while there was no necessity of saying anything about probable cause, still it is not probable that the jury was misled by the hypothesis upon which the instructions were drawn. The plain matter of fact as to whether there had been such a trespass committed upon the person of the plaintiff as to entitle him to damages commensurate with the wrong and injury done him was sufficiently presented by the trial, and we are not disposed to disturb the verdict of the jury.

There are many circumstances of aggravation in this case, and no objection can be taken to the ruling of the court below as to the measure of damages. There was no error in the refusal of the instructions asked by the defendant.

The judgment of the court below will be affirmed.

The other judges concur.

Motion for rehearing overruled.