Pounders v. Trinity Court Nursing Home, Inc. , 265 Ark. 1 ( 1979 )

George Rose Smith, Justice.

The appellant, Margaret Pounders, aged 75, a widow, brought suit for false imprisonment against the two appellees, Trinity Court Nursing Home and Gloria Gaines, who is a niece of Mrs. Pounders’s late husband. At the close of a jury trial the judge directed a verdict in favor of both defendants. The only question is whether there is any substantial evidence presenting a prima facie case of false imprisonment. We find no such evidence in the record.

We state the facts in the light most favorable to Mrs. Pounders. For some time she had lived with Mr. and Mrs. Gaines, who, in Mrs. Pounders’s words, were wonderful to her. Mr. Gaines, however, became dissatisfied with the arrangement and directed that Mrs. Pounders be placed in a nursing home. Mrs. Pounders did not own a place of her own.

On July 14, 1976, Mrs. Gaines took Mrs. Pounders to Trinity Court, a nursing home occupying a two-story building in Little Rock. Mrs. Pounders, understandably, did not want to enter a nursing home, but she testified that she went without protest. There is no imprisonment when one agrees to surrender her freedom of motion. Faulkinbury v. U.S. Fire Ins. Co., 247 Ark. 70, 444 S.W. 2d 254 (1969). Mrs. Gaines’s commitment of her aunt to the nursing home obviously did not amount to false imprisonment, because no force or threats were used, and there was actually consent.

Mrs. Pounders remained in the nursing home for two months. She testified that she was not allowed to have any visitors (except, apparently, Mrs. Gaines), that she was not allowed to use the telephone, and that she was not allowed to write to anyone. Her room was on the second floor. There was a nearby stairway by which she could have left the building any time, she wanted to. Her reason for not leaving was that the nursing home had her shoes, and she did not want to go out in bedroom slippers. She also said that one of the aides (unidentified and not shown to have had any authority to speak for the nursing home) told her that if she tried to run away, “they’d get you before you’d get anywhere and they would just bring you back.” Mrs. Pounders admits that Mrs. Gaines visited her once or twice a week. She does not say that she ever spoke to Mrs. Gaines about the possibility of going somewhere else.

Again, there was obviously no false imprisonment during Mrs. Pounders’s stay at Trinity Court. To make a defendant liable for false imprisonment, the plaintiff’s confinement within bourn, aries fixed by the defendant must be complete. Restatement of the Law, Torts (2d), § 36 (1965). Here there is no evidence whatever either of physical force or of any threat of physical force. To the contrary, Mrs. Pounders could have left the nursing home at will, but she simply had now'here to go and chose to stay.

Finally, there remain the events that led to her departure. Mrs. Pounders sent word to Laura Fulmer, the wife of a nephew' of Mrs. Pounders’s husband, that she wanted to leave the nursing home. Mrs. Fulmer testified that she telephoned Trinity Court to ask about visiting hours and was told that Mrs. Pounders w'as not allowed to have any visitors. On the afternoon of July 13 Mrs. Fulmer went to the nursing home and had no difficulty in going up to the second floor and visiting w'ith Mrs. Pounders in her room. She then went dowmstairs to the office and talked to Mrs. Brummett, the w'ife of the manager. When Mrs. Fulmer explained that she w'as Mrs. Pounders’s niece by marriage and wanted Mrs. Pounders to come live with her, Mrs. Brummett said that no one could get her out but Mrs. Gaines. No effort was ever made to get Mrs. Gaines’s consent to the release, and there is no indication that she would not have agreed. Mrs. Brummett’s statement certainly did not amount to the physical restraint that constitutes false imprisonment.

Mrs. Fulmer w'ent directly from Trinity Court to a lawyer, J. H. Berry. Berry testified that, “as I told Mrs. Fulmer, I w'anted to get some idea whether I feit that [Mrs. Pounders] w'as really able to make her own decision. And also, I wanted to see, to ascertain myself, w'hether she wanted to go or stay.” Berry w'ent to the nursing home and, with no difficulty, went upstairs to Mrs. Pounders’s room and talked with her for some time. He was satisfied that she was in full possession of her faculties and w'anted to leave.

Berry then went downstairs to see the manager, Mr. Brummett. Berry explained in his testimony just what happened:

A. . .. Mr. Brummett came in very shortly and told me that it was their custom that the people in the nursing home be released only to those who brought them in, and I told him that, in my opinion, since she wanted to leave, that they had no right to hold her. I also told him that if she wasn’t released, well, we would have no alternative but to apply for a writ of habeas corpus.

Q. The purpose of which is what?

A. The purpose of which is to determine whether there is a legal basis for holding someone. And which, if it had been successful, would have brought about her release.

Q. What was Mr. Brummett’s response to this statement?

A. Well, of course, Mr. Brummett was very courteous throughout. He said, Well I will talk with — and he — I can’t remember who specifically he said he would talk with, but he said he would talk with one of the nieces of Mrs. Pounders, who had brought her there and see if it w'ould be all right. And he tried to call. I can’t remember whether he called one or made one or tw'o attempts to call one or two different people. But, when he couldn’t locate them, he said, “Well, I’ll tell you what I’m going to do, I’m just going to go ahead and release her.” And he did immediately. He said she could go any time someone came to pick her up. Of course, I myself wanted someone to pick her up, you know, some member of the family. And Mrs. Fulmer had always said to let her know and she would come and get her. So, I notified Mrs. Fulmer and assume she was immediately released to Mrs. Fulmer.

Mrs. Pounders in fact left with Mrs. Fulmer and was living with the Fulmers at the time of the trial.

Again, it is obvious that there was no false imprisonment in its proper sense of compulsory physical confinement. The nursing home’s rule that a patient be released to the person w'ho arranged for her admission certainly does not amount to false imprisonment. That Berry saw fit to suggest the possibility of an application for a writ of habeas corpus did not somehow' have the effect of physically imprisoning Mrs. Pounders, w'ho was upstairs in her room and could have w'alked out by herself if she had chosen to do so. We agree w'ith the trial judge’s conclusion that there was no substantial evidence of false imprisonment either by Trinity Court or by Mrs. Gaines.

Affirmed.

Byrd and Purtle, JJ., dissent.