McKenna v. Whipple , 97 Conn. 695 ( 1922 )

The complaint is in two counts: the first for a malicious prosecution, the second for a false imprisonment. The first count alleges that defendants Whipple and Averill made complaint to defendant Laird, a police officer in Putnam, charging plaintiff with being intoxicated; that plaintiff was arrested upon this charge by Laird, and locked up in Putnam; that he was on March 29th, 1921, brought before the Police Court of Putnam on said charge, and defendants testified against him, and charged him with being intoxicated, the offense charged against the plaintiff; that the charge was false and upon trial therefor plaintiff was acquitted and discharged; that Whipple and Averill made the charge from motives of malice, and that there was no reasonable or probable ground for the prosecution.

The second count made all of the above allegations a part of it except the allegation as to malice and probable cause; and further alleged that defendants caused the false charge that he was intoxicated to be made without any reasonable cause; that plaintiff was arrested by Laird and placed in a cell in the police station in Putnam and there held and imprisoned for several hours; that on the next day he was arraigned in the Police Court of Putnam on the charge of intoxication, when defendants again falsely charged the plaintiff with this offense, and that he was acquitted and discharged by the court.

Defendants admitted all the allegations of the first count except that which alleged that the charge of intoxication was false, and that Whipple and Averill made the charge from motives of malice and that there was no reasonable or probable cause for the prosecution. Defendants admitted all the allegations of the second count except that defendants caused the false charge of intoxication to be made without reasonable cause or right, and that plaintiff was brought before the court on the charge of intoxication and acquitted and discharged. So that it appears that the practical issue in dispute under each count was as to the truth of the charge of intoxication, and that there was no reasonable or probable ground for this charge.

So far as the present cause of action is concerned, the only misdemeanor upon which plaintiff was arraigned, tried and acquitted, was intoxication. The complaint did not allege that plaintiff was not intoxicated when arrested, and the answer did not allege that plaintiff was then intoxicated, and the court makes no finding as to this. But the court has found that there was probable cause for this charge, hence an essential element of the cause of action of malicious prosecution of the first count was not proven, and the action against defendants on the first count must fail.

The false imprisonment charged under the second count was made by defendant Laird, and Whipple and Averill are responsible only as they advised, aided and abetted him in it. It follows that if Laird is justified in what he did, they are also justified. The trial court held correctly that as to the intoxication "he was acting with reference to something within his own field of observation," and under the rule announced inPrice v. Tehan, 84 Conn. 164, 168, 79 A. 68, at his peril. And since intoxication is the only offense referred to in the pleadings in this action, if the plaintiff had been found not intoxicated at and before the time of his arrest, the liability of the officer would be fixed. The trial court held that the acquittal of plaintiff upon the charge of intoxication, conclusively established the fact that he was not intoxicated at the time charged. This is not the law. The judgment of a criminal court was not competent evidence to prove that plaintiff was not intoxicated, in an action between other parties. 2 Black on Judgments (2d Ed.) § 529; Betts v. NewHartford, 25 Conn. 180; Commonwealth v. Cheney,141 Mass. 102, 6 N.E. 724. Therefore, whether or not plaintiff was intoxicated could have been tried out denovo in the action for false imprisonment, had it been made an issue in the case.

General Statutes, § 223, provides that sheriffs, police officers, and other officers, "in their respective precincts, shall arrest without previous complaint and warrant, any person for any offense in their jurisdiction, when the offender shall be taken or apprehended in the act, or on the speedy information of others; and all persons so arrested shall be immediately presented before proper authority." This Act was passed primarily to guide officers in dealing with persons believed to be committing, or to have committed, misdemeanors.Price v. Tehan, 84 Conn. 164, 79 A. 68. Laird, as we have already said, must act as to the charge of intoxication upon what he himself saw; he could not act as to this upon the speedy information of Whipple and Averill, for that offense was before him. The court has found that the plaintiff was in fact charged with two offenses, intoxication, and operating an automobile while under the influence of liquor or drugs. Laird had, under this statute, the right to arrest plaintiff for the misdemeanor of operating a motor-vehicle while under the influence of liquor or drugs, upon receipt by him of speedy information from Whipple and Averill. But the action for false imprisonment is based upon the charge of intoxication, and not that of operating a motor-vehicle while under the influence of liquor or drugs. The judgment is as to this count based upon this latter offense which is not within the pleadings. Under our law a judgment upon facts outside the issues cannot be legally rendered. In Pitkin v. New York N.E. R. Co., 64 Conn. 482, 490, 30 A. 772, we said: "A judgment must be according to the facts alleged as well as according to the facts proved; otherwise it is erroneous on the face of the record." In Greenthal v.Lincoln, Seyms Co., 67 Conn. 372, 378, 35 A. 266, we said: "The verity of records and the conclusiveness of judgments alike require that the facts determined should be those only which are within the issues joined." Again, in Ives v. Goshen, 63 Conn. 79, 82, 26 A. 845, we said: "It is not enough that a party proves facts constituting a cause of action; he must also have alleged them before he can recover." We later wrote, inWhiting v. Koepke, 71 Conn. 77, 79, 40 A. 1053: "When the facts upon which the court in any case founds its judgment are not averred in the pleadings, they cannot be made the basis for a recovery. . . . Under the Practice Act the right to recover rests upon and is limited by the facts alleged in the complaint." The authorities from Skinner v. Bailey, 7 Conn. 496, 500, to Ohlin v. Kowner, 96 Conn. 394, 400, 114 A. 117, are numerous and uniform in adhering to and in enforcing this rule of practice. Unless the judgment can be based upon the existence of the charge of operating a motor vehicle while under the influence of liquor and drugs, it cannot stand. Laird cannot justify under a charge which the record fails to show that the plaintiff was tried upon.

So far as the record discloses Laird has not justified. The circumstances are such that the defendants will undoubtedly be permitted by the Superior Court to amend their pleadings so that what the court calls the "real reason for the arrest of the plaintiff" may be before the court. In the present condition of the pleadings we have no recourse but to find error in the judgment rendered.

The rulings on evidence are not likely to arise on another trial and need not be considered.

There is error and a new trial is ordered.

In this opinion the other judges concurred.