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Cannon v. Krakowitch

Decided: February 3, 1959.


Goldmann, Conford and Haneman. The opinion of the court was delivered by Haneman, J.A.D.


[54 NJSuper Page 95] This is a civil action for damages arising from an alleged false imprisonment. Defendants

are members of the police department of the Borough of Red Bank; Clayton is a patrolman, Williams a uniformed sergeant, and Krakowitch a detective-sergeant. The trial court, at the close of plaintiff's case, granted a motion for dismissal of the action as to Williams. The jury returned a verdict of no cause for action in favor of Clayton and Krakowitch.

Plaintiff's appeal is from the final judgment of the Law Division entered upon that verdict. Two grounds are urged as error on this appeal; (1) the verdict of the jury was against the weight of the evidence and the result of mistake, partiality, passion or prejudice, and (2) the court erred in its charge to the jury. The validity of the judgment of dismissal as to defendant Williams, which was included in the notice of appeal, is not set forth in or necessarily suggested by the statement of questions involved, and was not briefed or argued on the appeal. That issue is not properly raised on this appeal and will not be considered. R.R. 1:7-1(c); Roberts Electric, Inc. v. Foundations & Excavations, Inc. , 5 N.J. 426, 430 (1950); Wellmore Builders, Inc. v. Wannier , 49 N.J. Super. 456, 468 (App. Div. 1958), certification granted, 27 N.J. 320 (1958).

On Sunday, January 20, 1957, Williams and Clayton were patrolling their assigned district in a police vehicle. Their assignment included the public park in Red Bank, known as Marine Park. Some time during the late afternoon (between 5 and 6 P.M.) these officers drove to Marine Park and there observed plaintiff's automobile. In it were plaintiff and his fiancee. Plaintiff and the young woman were or had been locked in an embrace -- their relative positions both as to each other and to the front seat of the vehicle being a disputed issue. Some exchange of words transpired between the officers and plaintiff, exactly what was said and the tone and manner of its delivery also being disputed. As a consequence of this verbal exchange the officers got out of their patrol car, approached plaintiff's automobile, and stationed themselves, one on each side of the front doors of the automobile. Officer Clayton requested

that plaintiff produce his driver's license and registration, with which request plaintiff complied. At some point during this procedure the officer observed on the floor of plaintiff's vehicle a portable electric heating appliance of the type used by the operators of outdoor motion picture theatres. Plaintiff did not deny Sergeant Williams' statement that "This is a heater and belongs in a drive-in movie." In answer to the question "Where did you get it?", he refused to disclose the origin of that appliance. Sergeant Williams then ordered plaintiff and the girl into the police patrol car and all repaired to the Red Bank police station. Plaintiff was detained there for a period of three to four hours. During this time he was questioned by Krakowitch concerning his possession of the heating appliance. Plaintiff at first refused to discuss the particulars surrounding his possession of the appliance. However, after further questioning he told Krakowitch that the heater came from the Eatontown Drive-in Theatre and disclosed that he had, inadvertently, neglected to remove the apparatus from his automobile on leaving the theatre one evening approximately three weeks prior. Thereupon Krakowitch ordered Clayton to detain plaintiff in a cell. Shortly thereafter, at the request of Krakowitch, the manager of the theatre appeared at police headquarters. He identified the appliance as one of those belonging to the corporation by which he was employed. Krakowitch then notified the Eatontown police and, upon the arrival of an officer from that department, released plaintiff to his custody. In connection with whether plaintiff was brought before a magistrate, Krakowitch testified:

"Q. Did you make a complaint against Mr. Cannon? A. No, sir.

Q. Did you call a magistrate for the purpose of having him brought before a magistrate? A. No, sir. It is not our case."

Nor were any charges preferred against plaintiff in Eatontown.

Plaintiff argues that the verdict was against the weight of the evidence. His position is that it is impossible, under

the facts, for the jury to conclude that plaintiff was not ...

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