Samuel Kirk & Son v. Garrett

McSherry, C. J., delivered the opinion of the Court. This is an action of trespass for assault and false imprisonment. There are five bills of exception in the record. Two relate to rulings of the Superior Court on prayers for instructions to the jury and three to the admissibility of proffered, but rejected evidence.

About some of the facts there is dispute and conflict. To these facts reference will be made as we proceed. They have relation to the ruling in the' first, and to some of the rulings in the fifth bill of exceptions. The uncontroverted facts, that are material to an intelligent presentation of the questions involved in all the rulings complained of, may be concisely summarized from the record without quoting extensively or literally from its pages.

Two of the defendants, Henry C. Kirk and Henry C. Kirk, Jr., constitute the firm of Samuel Kirk & Son, manufacturers and dealers in silverware. The equitable plaintiff, a youth of some seventeen or eighteen years of age, was one of their employees, and his duty was to polish the finished work. The other two defendants, Miller and Hardesty, were members of a detective agency; one of them, Hardesty, being a constable. The Messrs.

Kirk discovering that they were being subjected to repeated losses by larcenies believed to have been committed by persons in their service, the junior member of the firm engaged Miller and Hardesty to investigate and to ascertain, if possible, the culprits. On the last day of July, 1894, the equitable plaintiff took from the shop of Kirk & Son a half dozen silver tablespoons concealed in his pocket, and on the corner of ⁴⁰³ Saint Paul and Fayette streets handed them to a co-employee to be engraved, the engraver having previously refused to take them from the plaintiff whilst in the defendants’ shop. The detectives saw the plaintiff leave the shop with something hidden in the inside pocket of his coat, and they also saw him give the package to the engraver on the street corner. The next day the plaintiff on leaving the shop again took with him six tablespoons, which he carried, as before, in the inside pocket of his coat.

As he proceeded up the street on his bicycle he heard a whistle, and on looking around saw Hardesty, who motioned to him to stop. He did stop and Hardesty went up to him, showed his badge as a constable and requested the equitable plaintiff to accompany him to his, Hardesty’s office. Thereupon Miller joined them and the three walked to the office of Miller and Hardesty, not far distant. When they reached there and entered with the plaintiff, they locked the door and then asked him whether he had any spoons in his possession.

He replied that he had and produced a half dozen tablespoons from his inside pocket; whereupon the detectives charged him with having stolen them, which charge he denied and claimed that, though the spoons were stamped with the name of Samuel Kirk & Son, and were Kirk’s silver, he had exchanged for them, without the knowledge of his employers, an equal amount in weight of old silver. Mr. Kirk, Junior, was then sent for, and upon his arrival made inquiries as to whether other employees had been guilty of stealing, and the plaintiff, according to one of his versions of the interview, informed Mr. Kirk that five others had exchanged old silver for manufactured silver, just as the plaintiff said he had done; but according to the version of the interview given by Mr. Kirk and by Mr. Miller and Mr. Hardesty, the plaintiff admitted that five other employees were guilty'of stealing articles from Kirk & Son’s shop, and he gave the names of the parties and described the articles, and signed a paper setting forth this information. He was then taken to Brawner’s Hotel, as he says, without his con ⁴⁰⁴ sent and against his will; but as the other three declare, at his own instancetand request. He was told by the detectives immediately after his arrest, so they and Mr. Kirk assert, that they would be obliged to take him to the station-house to be dealt with by the Police Department; but he appealed to Mr. Kirk to prevent this being done, as his arrest, if thus given publicity, would become known to his invalid mother and the shock would probably cause her death.

In consequence of this appeal, in view of his youth and upon his promise to appear before the grand jury and there testify against his co-employees, Mr. Kirk, Junior, consented that he should not be taken to the station-house ; and the plaintiff himself suggested that he should be allowed to go with the detectives to a hotel and be there kept until he could give his testimony before the grand jury. He was taken to Brawner’s Hotel and remained there all night. The next day he went back to Miller and Hardesty’s office with them and staid there the entire day, and the night of that day he spent, still in the company of the detectives, at the Imperial Hotel. The next day he went before the grand jury and testified, though, as he now says, he did not then inform the grand jury that the other men, named by him to Mr. Kirk, had been stealing from the firm.

After appearing as a witness before the grand jury he was permitted to return to his home, no accusation was lodged against him and he was reinstated by the firm, in his position as an employee, where he remained until' within a day or two before this suit was instituted, on the following twenty-first day of September. Henry C. Kirk, Senior, had no knowledge of the arrest of the equitable plaintiff when it was made, and according to the undisputed evidence had nothing to do with it; nor does he appear to have known'what was done with the plaintiff when he was taken into custody. The spoons found in the possession of the equitable plaintiff when he was arrested were beyond doubt the property of Samuel Kirk & Son. They had been made for them out of their own silver, by their own workmen ; bore their ⁴⁰⁵ trade mark, and the cost of their manufacture had been paid by the firm.

That an employee, without their knowledge or consent could surreptitiously take and carry away this property upon leaving with a fellow workman in its place and stead raw material equal in weight but not the equivalent in value of the manufactured article, and yet be innocent of the crime of larceny is a doctrine which finds no countenance or sanction in the law. When, therefore, the equitable plaintiff took and carried away from the shop of Kirk 8c Son on the thirty-first of July one-half dozen tablespoons and again on the day following an additional half dozen, he was incontestibly guilty of larceny. If so guilty was his arrest or detention lawful or illegal ? The illegality of the arrest and the unlawfulness of the detention are indispensible elements in this form of action; and if, therefore, the arrest were lawful and the detention were reasonable there was, and could be in the very nature of the case, no false arrest or false imprisonment.

From the earliest dawn of the common law a constable could arrest without warrant when he had reasonable grounds to suspect that a felony had been committed ; and he was authorized to detain the suspected party such a reasonable length of time as would enable him to carry the accused before a magistrate. And this is still the law of the land. It is wholly immaterial whether the suspicion arises out of information imparted to the constable by some one else, or whether it is founded on the officer’s own knowledge. In either event what amounts to a sufficient ground of suspicion to justify an arrest, by a constable, without a warrant, is for the Court and not for the jury to determine.

In Pollock on Torts this doctrine is thus stated: “ What is reasonable cause of suspicion to justify arrest is—paradoxical as the statement may look—neither a question of law nor of fact. Not of fact, because it is for the Judge and not for the jury (citing Hailes v. Marks, 7 H. & N. 56); not of law, because no definite rule can be laid down for the exercise of the Judge’s judgment (citing Lister v. Perryman, L. R. 4 H. L. ⁴⁰⁶ 521, per Lord Chelmsford and Lord Colonsay). It is a matter of judicial discretion such as is familiar enough in the classes of cases which are disposed of by a Judge sitting alone; but this sort of discretion does not find a natural place in a system which assigns the decision of facts to the jury and the determination of the law to the Judge. The anomalous character of the rule has been more than once pointed out and regretted by the highest judicial authority.” Lord Campbell in Broughton v. Jackson, 18 Q. B. 378; Lord Hatherly, Lord Westbury and Lord Colonsay in Lister v. Perryman, supra. “ But,” continues the author, “ it is too well settled to be disturbed unless by legislation.” Pollock on Torts, 192 (edition of 1887); Cohen v. Huskisson, 2 M. & W. 477; Warner v. Reddiford, 4 C. B. n. s. 180; Mure v. Kaye, 4 Taunt. 34; 2 Addison on Torts, sec. 841.

It may be broadly stated that what amounts to probable cause in cases of malicious prosecutions will amount to such reasonable grounds for suspicion of felony as will justify and require an officer to make an arrest. Reg. v. Dadson, T. & M. 385; 2 Am. & Eng. Ency. Law, 871 (second edition).

Now, do the facts show that Hardesty, the constable, had reasonable grounds to suspect that a felony had been committed and that the equitable plaintiff was the guilty party ? If they do, the arrest, though made without a warrant, was lawful. The constable had been informed by the younger Mr. Kirk that larcenies were being committed, and he saw, the day preceding the arrest, the plaintiff come from the shop with something concealed in the inner pocket of his coat, and he further saw this package delivered on the street corner to another employee whom Miller followed and found to be Kirk’s engraver. And then on the day of the arrest he saw the plaintiff with something again concealed in his pocket and upon arresting him found in his possession the spoons that belonged to Samuel Kirk & Son.

Here then was a case where the plaintiff had actually stolen his employer’s property—for as we have already said his taking of ⁴⁰⁷ the spoons even under the conditions testified to by himself was indisputably a larceny—and he was found with the stolen property in his possession. There was, therefore, not only reasonable ground to suspect that a felony had been committed, but there was clear and conclusive evidence of the fact that the equitable plaintiff was guilty; and had the officer taken the accused in a reasonable time before a magistrate to be committed or bailed for his appearance to answer the charge, the case would, on the plaintiff’s own showing, have been at an end. It cannot be questioned that when a person is arrested either with or without a warrant, it becomes the duty of the officer or the individual making the arrest to convey the prisoner in a reasonable time and without unnecessary delay, before a magistrate to be dealt with as the exigency of the case may require. The power to make the arrest does not include the power to unduly detain in custody; but on the contrary is coupled with a correlative duty, incumbent on the officer, to take the accused before a magistrate “ as soon as he reasonably can.” 1 Hilliard on Torts, 223, sec. 19; Wright v. Court, 4 B. & C. 596; Firestone v. Rice, 71 Mich. 377 ; B. & O. R. R. Co. v. Cain, 81 Md. 87 ; Twilley v. Perkins et al., 77 Md. 252 ; Rohan v. Sawin, 5 Cush. 281 ; Com.

Dig. Imprisonment, H. 4. If the officer fails to do this and unreasonably detains the accused in custody he will be guilty of a false imprisonment no matter how lawful the original arrest may have been. 1 Hil. Torts, 213—214, sec. 9.

We are brought, then, to the prayer presented by the defendant at the close of the plaintiff’s evidence. It asked an instruction that the plaintiff was not entitled to recover, but was rejected by the Trial Court; and this is the ruling brought up for review by the first bill of exceptions. At the close of the evidence on both sides the defendants again offered the same prayer and it was again rejected, and this is one of the imputed errors complained of in the fifth bill of exceptions. Before such a prayer can be granted in any ⁴⁰⁸ case all the plaintiff’s evidence must be assumed to be true; and if, when conceded to be true, it fails to show a right on his part to recover, it then becomes the duty of the Court to withdraw the case from the consideration of the jury.

But here, according to the plaintiff’s own testimony, though he himself showed that he had been rightly arrested, he protested against being detained in the custody of the detectives ; and if his statement in this particular be accepted as true, and this must be done for the purpose of determining whether such a prayer as we are now considering ought to be granted, then he was detained for an unreasonable length