Ewing v. Kutch

1958 OK 214, 330 P.2d 361, 1958 Okla. LEXIS 571

• Court: Supreme Court of Oklahoma
• Decided: September 30, 1958
• Docket: No. 37725
• Status: Published

Opinions

WELCH, Chief Justice.

Kathryn Ewing brought suit in the District Court of Kiowa County on March 22, 1956, against Doss M. Kutch, Night Chief of Police of Hobart, Oklahoma, and The Travelers Indemnity Company, a corporation, for unlawful arrest. This suit was defended on the grounds that the defendant officer was justified in making the arrest under the provisions of paragraph 4 of Section 196, Title 22, O.S.A., which provides:

“A peace officer may, without a warrant, arrest a person: * * * on a charge, made upon reasonable cause, of the commission of a felony by the party arrested.”

And said action resulted in a verdict and judgment for defendants. An appeal was taken to' this court by plaintiff.

The plaintiff contends that the trial court erred in not sustaining her motion for a directed verdict.

The evidence most favorable to the defendants from the record is the testimony of the defendant, Doss M. Kutch, however, the pertinent part of it was not supported by any of the other witnesses. Pie testified ■that he was in Mr. Toma’s grocery store 'aboiffi 7 o’clock P.M., on the evening of the arrest, to buy some groceries. That after he had paid for his groceries and started out of the store, he was stopped by Mr. Toma who inquired of him whether he knew the plaintiff, and upon his reply that he did not, he was informed that she had-a check in there, had bought some groceries and that she would not identify herself, and Mr. Toma requested he investigate her.

Kutch’s testimony further reveals that he inquired of the Clerk, Jim Lake, what size check plaintiff gave, and was informed the check was in the amount of $30. Mr. Toma then showed plaintiff to Kutch as she was going down the street. That he followed her to a drug store, where Mr. Brown was cashing a check for plaintiff. That he informed her he had been called to investigate her on a check down at Toma Brothers; she denied having been in Toma Brothers’ store. That when she refused to go to Toma Brothers with him, he told her he would have to arrest her for investigation of a felony; she then went along without further trouble. That upon returning to Toma’s store with plaintiff, he then learned for the first time that she had not given a check to Toma, but had only asked to cash one. . |

It is shown by undisputed evidence that Mrs. Ewing had tendered her check to Toma’s store, but that it was not accepted for lack of identification; that she then went to the drug store; that the druggist either knew her or had formerly dealt with her and had filled a prescription for her which she picked up that day; that the druggist accepted her check and had counted out the change after taking out the price of the prescription, and had placed the change on the counter; that Mr. Kutch took the check from the druggist and handed back to him the change from the counter; that he then took Mrs. Ewing into custody in. the drug store and required her to accompany him the distance of several blocks to Toma’s store; that he there ascertained the fact to be that she had not cashed any check at Toma’s store; that he nevertheless required Mrs. Ewing to remain in his custody and to accompany him to the sheriff’s office or to the office room of the jail, where he required her to remain in his custody until he could telephone to the bank; that when he talked to the banker he received information that Mrs. Ewing’s check was good.

It therefore seems clear that the officer had little or no justification for taking Mrs. Ewing into custody. in the first place, or in requiring her to accompany him the distance of several blocks to Toma’s store, and that in any event when the officer was fully advised at Toma’s store that Mrs. Ewing had not cashed any check there, then there was no justification whatever for his detaining Mrs. Ewing in his custody and requiring her to go with him to the sheriff’s office or the office of the jail and to remain there in his custody while he telephoned to the bank. Mrs. Ewing had not violated any law, much less committed any felony. No one had- really suggested to the officer that she had committed any felony, and actually he had no facts whatever on which to fairly base a conclusion of probable cause to believe that she had committed any crime, much less a felony.

In the case of Hopkins v. Stites, 70 Okl. 177, 173 P. 449, we held:

“In an action for malicious prosecution what amounts to probable cause is a question of law for the court, and to leave the question of what amounts to, probable cause to the jury is prejudicial error.”

In the case of Anderson v. Sager, 8 Cir. 173 F.2d 794, the Federal Circuit Court of Appeals upheld the trial court in sustaining a motion for a directed verdict, when the officers, as defendants, failed by thejr evidence to show probable cause for arrest.

Where, under the pleadings, the plaintiff is entitled to recover unless certain affirmative defense pleaded by the defendants is sustained, and where no evidence is produced reasonably tending to support such defense a verdict should be directed in favor of plaintiff. Conwill v. Eldridge, 71 Okl. 223, 177 P. 79.

In the case of Aetna Life Ins. Co. v. Mosburg, 188 Okl. 371, 109 P.2d 493, we held:

“Where, under the evidence, a plaintiff is entitled to a directed verdict save for the amount of his recovery it is error to refuse a requested instruction to this effect.”

We have been unable to find any evidence in the record where any one made a charge or accusation that plaintiff had committed a felony. From all of the evidence most favorable to defendant, there does not appear any reasonable cause to even suspect the plaintiff had committed or was about to commit a felony, or that a felony had been committed. It cannot .be considered reasonable cause to believe one has committed a felony because they cash a check or attempt to cash a check in. a place of business where .they are not known. The record clearly reveals that this'plaintiff was doing nothing more than the ordinary individual might do in the course of transacting business any day.

Admitting all of the evidence which was given favorable to defendants, together with all inferences and conclusions as might be reasonably drawn from it, there is not sufficient evidence to authorize the verdict.

The sole question which should have gone to the jury, under the evidence here, presented, was the -amount of recovery, and therefore it was error to deny plaintiff’s motion for directed verdict.

Therefore judgment of trial court is reversed, and remanded for a new trial in accordance with views herein expressed.

CORN, V. C. J, and HALLEY, .WILLIAMS, BLACKBIRD and CARLILE, JJ., concur. DAVISON and JACKSON, JJ., dissent.