APPEAL from the Circuit Court of Champaign County; the Hon.
CREED D. TUCKER, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 22, 1976.
Plaintiff Robert Karow brought an action for false arrest and imprisonment against defendants. Judgment was entered upon a jury verdict returned in favor of defendants. Plaintiff appeals, contending, among other things, that a judgment n.o.v. should have been entered in his favor on the question of liability or, in the alternative, that errors in the instructions require a new trial. We affirm.
A brief review of the relevant evidence is necessary. Illini Towers is a student apartment building in Champaign County, Illinois, which is operated by Student Inns, Inc. Thomas Difanis was employed by Student Inns during the relevant times as a head resident. Students Inns, Inc., and Difanis are the defendants.
Martin Munvez testified that he was a lessee of one of the apartments in Illini Towers on May 14, 1971. On that date, Munvez invited the plaintiff to visit him, which plaintiff did.
Thomas Difanis, called as a witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 60), testified that he saw Karow in Munvez's apartment on May 14, 1971, and asked that plaintiff leave. Karow refused. Difanis then called the City of Champaign police and requested their assistance in removing a man from the building. Munvez and Karow denied Difanis had come to the apartment prior to the arrival of the police.
Difanis, testifying in his own behalf, stated that he saw Karow in a lounge area of the building around 5:30 p.m., on May 14, and at that time requested that Karow leave. Difanis next saw Karow at the time the Champaign police removed him from the building. Difanis acknowledged that this testimony was inconsistent with his prior testimony and with a deposition he had given, both of which were to the effect that the request to leave had occurred in Munvez's apartment.
A City of Champaign police officer, John Schweighart, testified that he and his partner went to Illini Towers on May 14, 1971, and were escorted to Munvez's apartment by Difanis. Asked if Difanis had requested him to arrest Karow, the officer testified that he had. Later, the officer testified that he could be wrong about that but that otherwise he would have had no reason to arrest plaintiff. Difanis denied that he asked the officers to arrest plaintiff. The officers decided to charge Karow with disorderly conduct. Plaintiff was taken to the City of Champaign police station where he was put through the procedure normal upon arrest (fingerprints taken, etc.). He was subsequently taken to the county jail and then released on bond. The disorderly conduct charge was later dismissed at the request of the State's Attorney. Defendants concede that Karow was not disorderly.
• 1 Plaintiff, on appeal, contends that the court erred in not granting plaintiff's post-trial motion for a judgment in his favor on the issue of liability. The standard to be applied is therefore the familiar Pedrick standard, that is, whether the evidence, viewed most favorably to the opponent so overwhelmingly favors the movant that no contrary verdict could stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14.
The action brought is for false arrest and imprisonment. Plaintiff has the burden of proving a restraint or arrest, caused or procured by defendants without their having reasonable grounds to believe an offense is being committed by plaintiff. False imprisonment consists of the unlawful restraint, against his will, of an individual's personal liberty or freedom of locomotion. Shelton v. Barry (1946), 328 Ill. App. 497, 66 N.E.2d 697.
• 2, 3 Plaintiff argues that defendant Difanis caused or procured his arrest and imprisonment as a matter of law. An arrest by an officer caused or procured by a private person is the same as an arrest by the private person. (Aldridge v. Fox (1952), 348 Ill. App. 96, 108 N.E.2d 139; Green v. No. 35 Check Exchange, Inc. (1966), 77 Ill. App.2d 25, 222 N.E.2d 133.) However, the mere act of giving information to the police is insufficient in itself to constitute participation in an arrest. Odorizzi v. A.O. Smith Corp. (7th Cir. 1971), 452 F.2d 229.
In Green v. No. 35 Check Exchange, Inc., plaintiff had been arrested after an employee of defendant pointed out plaintiff to the police as a person who had committed a forgery. The officer who arrested plaintiff testified that he relied solely on what the employee told him in making the arrest. The appellate court held that, under those circumstances, defendant through its employee procured plaintiff's arrest as a matter of law.
• 4 In the case at bar, Difanis testified that he had not requested the police to arrest Karow but merely requested their assistance in removing him from the building. Even accepting this testimony, which was contradicted to a degree by the officer, defendants caused the restraint of plaintiff since Difanis procured Karow's unwilling removal from the building. When a person is impelled to go where he does not wish to go, the imprisonment or restraint element has been established. McKendree v. Christy (1961), 29 Ill. App.2d 195, 172 N.E.2d 380.
The next question is whether the restraint was lawful. In Illinois, the rule had always been that a private person was liable for false imprisonment if it could not be proved that a crime was in fact committed and plaintiff was guilty of the crime. (Lindquist v. Friedman's, Inc. (1937), 366 Ill. 232, 8 N.E.2d 625; Green v. No. 35 Check Exchange, Inc.) A citizen could not make an arrest based upon probable cause to believe an offense was being committed. This was the logical result under the statutory provision authorizing arrests, which stated:
"An arrest may be made by an officer or by a private person without a warrant, for a criminal offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact been committed and he has reasonable grounds for believing that the person to be arrested has committed it." Hurd's Stat. 1903, par. 342, p. 67.
However that statute was changed in 1964, and has stated since then:
"Any person may arrest another when he has reasonable grounds to believe that an offense other than an ordinance violation is being committed." Ill. Rev. Stat. 1971, ch. 38, par. 107-3.
No cases have interpreted this new statutory language. The Committee Comments to section 107-3 state that the section continues the former law as to arrests by private persons except in regard to ordinance violations. A comparison of the old and the new sections clearly reveals a change. The former section prohibited arrests except when an offense was being committed while the present section, by its very language, permits a private person to arrest when he has reasonable ...