Wallner v. Fidelity & Deposit Co. of Maryland , 253 Wis. 66 ( 1948 )

Action commenced January 30, 1947, by Frank A. Wallner, Sr., against Harry M. Dietzman, Herbert Hinton, Herbert Hammond, and the Fidelity Deposit Company of Maryland, a surety corporation, for false arrest and imprisonment. A verdict against the plaintiff was directed by order of the court on October 14, 1947, and judgment was entered dismissing the action on November 1, 1947. Plaintiff appeals.

On August 13, 1945, a warrant for the arrest of one Edward Eccles was issued out of the justice court in Taylor county and was handed to the defendant, Harry M. Dietzman, then sheriff of Taylor county. Mr. Dietzman did not know Eccles, who was charged with escaping from the Taylor county jail on November 15, 1942, before Dietzman was sheriff. Dietzman was informed that one Albert Storms, who lived at Park Falls, in Price county, would be able to identify Eccles. On the assumption that Eccles was then located near Park Falls, the warrant was turned over to the sheriff of Price county and by him to the defendant Herbert Hammond, then chief of police of Park Falls. Hammond too was told that Storms could identify Eccles. On September 23, 1945, at about 8 p.m., Storms approached Hammond and told him that the man he was after was eating in a certain restaurant in Park Falls. Hammond told defendant Hinton, then a policeman at Park Falls, to arrest the man. Hinton did arrest the man whom Storms pointed out to him in the restaurant, but who was the plaintiff Wallner, not Eccles.

Wallner was taken to the city jail at Park Falls, where Hammond later interviewed him and read the warrant to him. Wallner said that he was not Eccles. Hammond called Dietzman at Medford to tell him they had a man who denied being Eccles but answered his description. Dietzman asked that Wallner be held until he could be brought to Medford, in Taylor county. Wallner spent that night and the next day in the Park Falls jail, and on the afternoon of that next day, September 24, 1945, Dietzman arrived to take him to Medford. No investigation was made around Park Falls to identify Wallner. Neither Deitzman nor Hammond asked Wallner to furnish identification, and Wallner offered none. Before they left Park Falls for Medford Dietzman went with Wallner while Wallner arranged to have his automobile put in a garage. After they arrived in Medford Wallner was put in jail there. The next morning Dietzman called in a former Taylor county sheriff who knew Eccles. After questioning. Wallner, the former sheriff concluded that he was not Eccles, though he resembled him strongly. Shortly after noon on September 25, 1945, Wallner was released and returned by bus to Park Falls.

The testimony introduced at the trial indicated that both Hammond and Hinton, although not personally acquainted with Wallner, had frequently seen him around Park Falls and knew of him as Frank Wallner. Hammond expressed doubt that Wallner was the man wanted. The testimony also shows that Storms did not know either Eccles or Wallner by name. When a resident of Taylor county, who was interested in finding Eccles, had described Eccles to Storms as being blind in one eye and wearing glasses, Storms reported that he knew of such a man. When he saw Wallner on September 23, 1945, he thought he was seeing the man described to him and wanted by the authorities.

The trial court in his opinion says, —

"Certainly there is no question regarding the liability of Mr. Hammond or Mr. Hinton; one of them acted under the chief of police, Mr. Hammond, and Mr. Hammond acted under the direction of the sheriff of Price county and the sheriff of Taylor county on the warrant that was handed him, and there is no question further, that they all had a right to arrest the plaintiff at the time they did and in the way they did on the information that they had that he was the man they were looking for. The only question that there can be any doubt about at all is whether or not the sheriff of Taylor county, the defendant Dietzman, should have made further investigation . . . it cannot be said that he acted in bad faith in any sense, hence, the verdict directed defendants." The appellant was placed under arrest under the circumstances set forth in the above statement of facts. It may be understood that those responsible for the arrest were not acting in any other manner or prompted by any other motive than to perform their duties as sheriff and police officials.

The obligation of an official is twofold, to apprehend the person named in the warrant and to avoid interfering with one not involved. The rule is that where an authority given by law is exceeded, the officer loses the benefit of his justification, and the law holds him a trespasser ab initio although to a certain extent he acted under the authority given. It is reasonable that when from all the circumstances of the case it appears reasonably clear that an officer has not acted in good faith or has been a too ready instrument in the perpetration of a grievous wrong by arresting the wrong person, he cannot be given the justification a writ or probable cause would otherwise afford. 2 Rawle C. L., Arrest, p. 486, sec. 46; 24 Rawle C. L., Sheriffs, p. 990, sec. 185. An officer's mistake under such circumstances, while not a justification, may reduce damages and show want of malice. The officer is liable if he fails to take proper precaution to ascertain the right person, or if he refuses information offered that would have disclosed his mistake, or if he detains the person an undue length of time without taking proper steps to establish his identity. 4 Am. Jur., Arrest, p. 74, sec. 118; 22 Am. Jur., False Imprisonment, p. 405, sec. 73; Restatement, 1 Torts, p. 283, sec. 125; Anno. 51 L.R.A. 219; 42 L.R.A. (N.S.) 72; 35 Am. St. Rep. 603.

In Filer v. Smith (1893), 96 Mich. 347, 353, 354,55 N.W. 999, the defendant sheriff had received a letter from the sheriff of another county, including a description and a photograph of one who was wanted there. Believing from the description that he had the man and learning that there was a warrant out for his arrest, the defendant arrested the plaintiff, who was not the person named in the warrant. The court in that case said, —

". . . an officer making an arrest upon a warrant, or upon knowledge that a warrant is out, of one whose person is unknown to him, who can, under the circumstances, only act, he act at all, upon photograph or description, or both, should be excused, if he acts honestly and prudently, making such inquiry and examination as the circumstances of each particular case afford him an opportunity to make. . . . Defendant was bound to use all reasonable means to avoid possible mistake, and the arrest of an innocent man. . . . He was not justified in relying upon a personal resemblance, as indicated by a comparison with a photograph, . . . especially as there was, within easy reach, means of identification."

In Miller v. Fano (1901), 134 Cal. 103, 109, 66 P. 183, the defendant officer had received a telegram directing him to arrest one K, who supposedly had sold a railroad ticket that did not belong to him to a broker. The broker went with the officer and identified the man who was arrested as one who looked like K. The prisoner told the officer his name and address and that he was not the man wanted. He referred the officer to one who had known him for many years and who was also known to the officer. The court, holding that the evidence sustained a judgment against the officer for false imprisonment, said, —

"An officer of the law has a duty to perform in making an arrest. He also owes a duty to the public, and to the party about to be arrested. He should use prudence and diligence to find but if the party arrested is the party described in his warrant. If, in his zeal, he wilfully or carelessly arrests an innocent party, he should be made to suffer the consequences."

It is in evidence in the case at bar that doubt existed as to appellant being the man named in the warrant, and it also appears that no effort was made to either connect or disassociate him with the person named in the warrant under which the officials acted. There was opportunity for inquiry and investigation, but none was made. The facts disclosed are such that they raise a jury issue as to whether the officials did not fail use the required caution in the performance of their duty in making the arrest.

By the Court. — Order and judgment reversed. Cause remanded for further proceedings according to law.

MARTIN, J., took no part.