On appeal from the Supreme Court.
For Frank F. Nelson, Patrick J. Maloney and Haines & Chanalis.
For Eastern Air Lines, Inc., and C. Norman Scully, Gerald M. F. McLaughlin and Fred A. Lorentz.
For William Polistina, Walter Bailey and Henry Morganroth, Coult, Satz, Tomlinson & Morse (Joseph Coult).
The opinion of the court was delivered by
CASE, J. Nelson was employed as stock clerk and Scully as field manager by Eastern Air Lines, Inc., at Port Newark. There had been thefts on the property and Nelson was suspected. Nelson was "picked up," detained, examined and, according to his complaint, subjected to false arrest, assault and battery and slanderous accusation. Polistina, Bailey, Johnson and Morganroth were all members of the Newark police department. Judgment went for Nelson in the amount of $600 against Polistina on the false imprisonment count and in the amount of $6,600 against Polistina, Bailey and Morganroth on the assault and battery charge. Plaintiff was nonsuited as to the slander count. Defendants Polistina, Bailey and Morganroth appeal from the judgments against them, and Nelson appeals from the judgment of nonsuit. [128 NJL Page 48] There was testimony upon which it could be found that: On the morning of October 6th, 1938, Polistina, accompanied by Scully, went to Nelson's apartment, caused him to be awakened, told him to get out of bed and get dressed and said, "You and Hard [a roommate and fellow employee] are going across the street for a little cup of coffee with us." The four then went to a "diner," nearby, where an Air Lines Company check with a forged endorsement had been cashed. The counter man viewed both of the young men and said to Polistina, "No, neither of these boys." Nelson was called upon to give, and gave, specimens of his handwriting. Nelson and Hard were then taken to the Newark police headquarters, and Nelson was conducted by Polistina to a small room opening upon a large one. Polistina obtained, at his direction, numerous further specimens of Nelson's handwriting and absented himself for about two hours. He then returned, told Nelson that the handwriting had been submitted to a prominent expert and pronounced identical with the writing in the forged endorsement and that another employee at the diner had positively identified him as the one who had presented the forged check there. Polistina then called upon Nelson for a confession -- "You may as well do it right now, to-day, because you are going to get a good beating. * * * You will be lucky if you leave here without any fractured ribs * * *," whereupon, with a foul epithet, he struck Nelson across the face, kicked him in the stomach and closed the door, leaving Nelson in the small room alone. Presently Scully came in, urged Nelson to confess and left. Bailey and Johnson then came, closed the door, threatened Nelson with a beating unless he confessed and cursed him. Bailey hit Nelson in the face and Johnson lashed him with a piece of rubber hose 18 to 20 inches in length until Nelson was on the floor. There was a short cessation followed by further profanity and lashing, and the two officers left Nelson alone for a brief period. Then Polistina, Bailey, Johnson and a fourth officer came in and after a time left with the exception of Johnson who, with a hose in each hand, flayed Nelson until he had beaten him, cowering and crying, to the floor. There was a further interval followed
by the entrance of Johnson, Morganroth and another, who indulged in further accusations, name-calling and physical punishment. Nelson was told that he could save himself from further beatings and confinement if he would confess; that if he confessed all that would happen would be that he would lose his job and have to make restitution, but that if he refused to confess permission would be given an officer to bring him down at midnight, stretch him across a table and go at him again with a rubber hose. Nelson was then fingerprinted and otherwise identified, put in a cell and imprisoned there without further maltreatment until Saturday morning, the second day after his incarceration, when he was released and told to appear the following Tuesday for a "line-up." Thereafter he received medical attention and at the time of the trial, a year and a half later, was still wearing an abdominal belt as the result of the physical violence inflicted upon him by the defendant policemen.
That was Nelson's story. Parts of it were strongly assailed. The police denied in toto the charges of abuse and assault. But the jury was entitled to believe Nelson and apparently did believe much of what he said. The recital, in its essential features, was not without credible support. There was both medical and lay testimony regarding Nelson's condition immediately after the experience at the police station; Nelson showed subjective symptoms of pain and physical incapacity and, objectively, numerous black and blue marks over his body. There were no warrant for arrest, no commitment and no arraignment before a judicial officer. Neither then nor later was there a complaint or an indictment against, or a conviction of, Nelson concerning the alleged crimes. Defendants denied that Nelson was unwillingly deprived of his liberty or that a violent hand was laid upon him; on the contrary they insisted that he willingly submitted to the proceedings as a contribution toward clearing up the mystery of the larcenies. Later, on December 31st, 1938, one Stevenson. an employee of the Air Lines and a roommate of Nelson and Hard, made a signed confession and shortly thereafter committed suicide. A limited use of Stevenson's confession was permitted at the trial in the effort to impugn the credibility of Nelson whom the confession was said to implicate.
The appellant police officers first complain of the following portion of the judge's charge:
"Assuming in this case that the original arrest of this plaintiff by the officer Polistina without a warrant was legal on the theory that the police officer had grounds to reasonably suspect that a common law felony, such as larceny, had been committed, the detention of the plaintiff Nelson by the police officer was justified only for the length of time reasonably required to take the plaintiff before a magistrate and procure a warrant of arrest. * * * If the detention or constraint of the person of Nelson, the plaintiff, was unreasonably prolonged, that is for a greater length of time than would be reasonably required to take the plaintiff before a magistrate and procure a warrant in the circumstances, the detention of the plaintiff became unlawful from the very beginning even though the original apprehension of the plaintiff might have been justified as lawful; * * *. A police officer arresting without a warrant cannot justify himself in holding the prisoner for an unreasonable time before obtaining a warrant upon the ground that such delay was necessary in order to investigate the case. It is the duty and the obligation of the police officer to bring the arrested person to a magistrate or before a court of competent jurisdiction as quickly as the circumstances of the case will permit."
It is well in reviewing the charge to have in mind the state of the proofs to which the charge was to be applied. More than forty-eight hours elapsed from the time when Nelson was confronted, while still in bed, by Officer Polistina to his release on "parole," as it is called, on the second day thereafter. During part of that time he was being manhandled; during much of it he was kept, alone, in a cell. If the defendants' contention that that was a voluntary experience is true, then there was no arrest. But the willingness or the compulsion was a strongly litigated issue, even as to the detention; and the idea of willingly taking a beating is absurd. Nelson testified that he was apprehended and held against ...