and, not seeing any, went to the counters near the middle of the store, and, upon inquiry not obtaining what he wanted, started to leave the store; that when he was about 6 feet from the outer door Hardie came down in front of him and said, "Give up;" that he replied, "Give up what?" that he was frightened; that Hardie said, "What you took off the counter," and the witness answered, "I didn't take anything;" that Hardie said, "Yes, you did;

go down in the cellar," pointing to the entrance, and the witness replied, "No, I won't; I didn't take anything; here is the dime I got from my mother to buy the pencil, and that is all I got;" that Hardie then ordered the plaintiff to turn out his pockets; that he replied, "No, I won't," and Hardie said, "Yes, you will;" that the plaintiff said, "You can turn them out yourself, if you want to," and Hardie answered, "No, I won't; I will have an officer down here in a minute, if you don't, and arrest you;" that then the plaintiff became frightened, and turned his pockets out, and showed Hardie a couple of handkerchiefs and a dime, and then Hardie said, "Get out of the store, and never let me see you in it again;" and that the plaintiff then left the store. The plaintiff further testified that Hardie did not stand between him and the door, but by the counter at the side of the door; that he (the plaintiff) stood facing the counter with his back toward the street. He also testified that Hardie "wouldn't let me move either side. He stood right there. I didn't move at all. wouldn't let me go near the door." The defendant took and filed the deposition of Hardie, a portion of which was offered by the plaintiff and received in evidence, in which Hardie testified that his attention had been called to the two boys "by a lady customer, who told him they were taking goods from the counters;" that he watched them for several minutes; that they moved to another counter as he approached;

He

that they began to watch him, and he saw one of the boys put some goods on a counter and move along; that when he asked them what they had in their pockets, both emptied their pockets willingly, and that he did not threaten or detain them. The jury were not bound to believe this evidence, but were entitled to credit the plaintiff's story as the true recital of what occurred.

without contact.

The question is whether there was sufficient evidence to warrant a verdict for the plaintiff upon all the testimony most fa- False imprisonvorable to him. It ment-restraint is well settled that any restraint, although without physical contact of the person, is sufficient to constitute false imprisonment. Jacques v. Childs Dining Hall Co. 244 Mass. 438, 26 A.L.R. 1329, 138 N. E. 843, and cases cited. We are of opinion that the evidence was insufficient to justify a finding that the plaintiff -requiring

customer to turn out pockets.

was restrained of his liberty by anything that was said or done by Hardie. To charge the plaintiff with larceny was not of itself evidence of false imprisonment. There was nothing in what Hardie said that amounted to a restraint of the plaintiff. He insisted that the latter should turn his pockets out, and told him that if he did not do so he would have an officer there and turned out his pockets as requested arrest him. Thereupon the latter

and left the store. Nor was there anything in what Hardie did to restrain the plaintiff of his liberty. While the plaintiff testified that Hardie would not let him move either side, that he stood right there, that he would not let him go near the door, yet it appears that during the conversation he was standing near the door, between it and Hardie, and could have left the store, so far as appears, without any interference whatever. The plaintiff's statement that Hardie would not let him go near the door is a conclusion. of fact which is expressly negatived by his other testimony.

words, there was no evidence that during the brief conversation the plaintiff was prevented by acts of physical force, threats, or otherwise from leaving the store at any time. There were no words or conduct which could have induced a reasonable apprehension by the plaintiff, notwithstanding his tender years, that he could not leave the defendant's premises without interference if and when he desired to do so.

Moreover, there was nothing in the conduct of the defendant's agent in the detention of the plaintiff in this case which exceeded the exercise of his legal rights. The case is distinguishable in its facts from that of Jacques v. Childs Dining Hall Co. supra.

We are of opinion that the motion for a directed verdict should have been granted.

Exceptions sustained.

Facts held to constitute detention.

In each of the following cases a charge of larceny and the circumstances surrounding such charge were held to constitute such an unlawful detention as would support an action for false imprisonment:

Illinois. Coolahan v. Marshall Field & Co. (1911) 159 Ill. App. 466. Indiana. Harness v. Steele (1902) 159 Ind. 286, 64 N. E. 875.

Kansas.-Garnier v. Squires (1900) 62 Kan. 321, 62 Pac. 1005.

Maryland.

Fleisher v. Ensminger (1922) 140 Md. 604, 118 Atl. 153. Michigan. - Moore v. Thompson (1892) 92 Mich. 498, 52 N. W. 1000.

Montana. See Kroeger v. Passmore (1908) 36 Mont. 504, 14 L.R.A. (N.S.) 988, 93 Pac. 805.

New Jersey. Hebrew v. Pulis (1906) 73 N. J. L. 621, 118 Am. St. Rep. 716, 7 L.R.A. (N.S.) 580, 64 Atl. 121.

New York. Mali v. Lord (1868) 39 N. Y. 381, 100 Am. Dec. 448; Searls v. Viets (1873) 2 Thomp. & C. 224; Stevens v. O'Neill (1900) 51 App. Div. 364, 64 N. Y. Supp. 663, affirmed in (1902) 169 N. Y. 375, 62 N. E. 424. See also Murray v. Friensberg (1891) 61 Hun, 620, 39 N. Y. S. R. 600, 15 N. Y. Supp. 450. Oregon.

Bingham v. Lipman (1901) 40 Or. 363, 67 Pac. 98.

Texas. S. H. Kress & Co. v. Lawrence (1914) Tex. Civ. App. 162 S. W. 448.

Wisconsin.

See Cobb v. Simon (1903) 119 Wis. 597, 100 Am. St. Rep. 909, 97 N. W. 276.

In Coolahan v. Marshall Field & Co. (Ill.) supra, an action for arrest and false imprisonment, it appeared that the plaintiff had been arrested in the basement of the defendant's store, by one not in the service of the latter, who took her and another woman to the first floor of the store, where he called his brother, a floorwalker for the defendant, to whom, it was alleged, he said that the women had stolen a handkerchief. They were then taken to the office in the store where thieves were taken, where the charge was repeated to the officer of the department, but were soon thereafter released and told that a mistake had been made. It was said: "From the evidence the jury might properly find that W. W. McCallum, the usher or floorwalker of the defendant, on being informed that the plaintiff had stolen a handkerchief from the defendant, designated as the place to which she should be taken the office of Ford, which he knew was the place where they took people that were stealing in the store; that he assisted in taking plaintiff to said office and took hold of her arm. If he touched her for the purpose of compelling her to go with him, that was an assault, an arrest, and if against her will he took her to that office, thereby restraining her of her liberty, that was

an imprisonment. As to Ford, the jury might properly find that he was in charge and control of a room in defendant's store where they took people that were stealing in the store;' that, while he was present in said office, plaintiff was brought into the office, the statement made that she had stolen a handkerchief, and that there in his presence she was searched by Anson McCallum. The jury found specially in answer to interrogatories that W. W. McCallum arrested the plaintiff, but such finding is not conclusive on the question whether Ford was also guilty of falsely imprisoning her." The question whether the floorwalker's acts amounted to an arrest or false imprisonment was said to be a question for the jury, and the evidence was said to be sufficient to support a verdict for the plaintiff.

In Harness v. Steele (Ind.) supra, the court held that the defendant, a sheriff, had arrested the plaintiff and had subjected him to his commands, where it appeared that the former had gone to the house where the latter, a boy, was visiting, called him out and told him that he had come to arrest him for the larceny of a watch, whereupon the defendant took him to the county jail. From the jail the boy was taken to the place where the theft was alleged to have taken place, there urged to confess and threatened with imprisonment, and then reconducted to the jail and again threatened with imprisonment. Finally he was ordered to the place where the arrest was originally made and directed to remain there. Under the evidence, said the court, the plaintiff was not permitted to move at his own free will. Judgment for the plaintiff was affirmed.

Garnier v. Squires (Kan.) supra, was an action based on several causes, one of which was for false imprisonment for holding the plaintiff at the point of a revolver in illegal restraint for about thirty minutes. The testimony showed that the defendant had charged the plaintiff with stealing $500 from him, and demanded its return while pointing a revolver at the

defendant and putting him in fear of his life. The court said that the chief elements of false imprisonment were unlawful detention and restraint, and declared that the evidence tended to show actual restraint for a short time as a result of fear of bodily harm. The court, discussing the elements of false imprisonment, quoted as follows: "All that is necessary is that the individual be restrained of his liberty without any sufficient legal cause therefor, and by words or acts which he fears to disregard."

In Fleisher v. Ensminger (1922) 140 Md. 604, 118 Atl. 153, an action for false imprisonment, it appeared that the plaintiff, a saleswoman in the defendant's store, had sold an article and had dropped the money paid therefor, 20 cents, into her apron pocket, intending, so she said, to ring it up on the cash register as soon as she had finished showing goods to a customer who was waiting. Before she did so, however, she was summoned to the defendant's office, whither she was accompanied by another employee, and where, so she alleged, she was charged by the defendant with stealing money and articles, abused, and ordered to bring her pocketbook from the locker room, which she did while accompanied by an employee at the defendant's direction. She testified also that the defendant told her that he could have her arrested and that she feared such action. The court declared that any deprivation of another's liberty without his consent, by violence, threats, or otherwise, when done unlawfully, constituted false imprisonment, and that it could not be said that there was no evidence in this case to go to the jury. The plaintiff's prayer, requesting that, if the jury should find the facts to be substantially as set forth, their verdict should be for her, was approved. The plaintiff's willingness to comply with the defendant's orders would not, it was held, defeat recovery by the former if such willingness was induced by fear of arrest or force. In conclusion it was said: "It remains to consider plaintiff's second and defendant's second pray

ers. The special exception to plaintiff's second prayer was properly overruled. The majority of the court holds that the omission from this prayer of any specific reference to the alleged threat of the defendant implied from his alleged statement to the plaintiff 'that he could have her arrested,' and the rejection of defendant's second prayer, which specifically instructed the jury that the finding that defendant made such statement was necessary to recovery, were not prejudicial errors, in view of the full and fair presentation of the law as applicable to all the facts of the case in plaintiff's third prayer and in defendant's eight and ninth prayers." Judgment for the plaintiff was affirmed.

In Moore v. Thompson (1892) 92 Mich. 498, 52 N. W. 1000, an action for slander and false imprisonment, it appeared that the defendant, in the presence of two others, charged the plaintiff with the larceny of a few articles of wearing apparel, and another person present then threatened her with arrest if she did not produce the stolen goods. The plaintiff's exit from a room was barred by this other person, and the defendant told her he would give her one hour to produce the goods or acknowledge her guilt. The plaintiff testified that she had been told that an officer was present, and that she felt that she was a prisoner. Later she was driven to her house in a bus with the defendant, and her trunk was searched. It was said: "We think these facts were sufficient, if believed by the jury, to justify a finding that plaintiff finding that plaintiff understood that she was under restraint, and that defendant knew that she so understood it is evidenced from his actions and his language as testified to by plaintiff. It is not necessary, in order to constitute false imprisonment, that the party be restrained after an unsuccessful attempt to escape from custody. It is enough if the restraint be put upon a person either by force or fear."

In Hebrew v. Pulis (1906) 73 N. J. L. 621, 7 L.R.A. (N.S.) 580, 118 Am. St. Rep. 716, 64 Atl. 121, it appeared that

the plaintiff was a domestic servant in the employ of two of the defendants, one of whom had lost a diamond ring and suspected the plaintiff of stealing it. A police officer, the other defendant, was called in, and by his orders the plaintiff was compelled to go to her room, take off all her clothes and allow them to be searched. The court held that this constituted false imprisonment, saying: "The fact that Pulis was a police officer, and known to the plaintiff to be such; that she was confronted not only by him, but by her employers; that she was suspected of larceny, for which the officer might arrest her if he had reasonable ground to believe that the crime had been committed, -warranted her in believing that if she failed to submit to Pulis's demand she would be actually arrested. The emphatic language in which the officer commanded her to 'strip to the hide' was calculated to terrorize a girl in her situation, and the very fact that the officer, wholly without right, asserted such authority and gave such a command, justifies the inference that he and his employers and codefendants intended to terrorize the plaintiff and to secure the effect of a search without legal process." And it was held that, unless it was clear that there was no reasonable apprehension of force, it was a question for the jury whether submission was a voluntary act or brought about by fear that force would be used.

In Mali v. Lord (1868) 39 N. Y. 381, 100 Am. Dec. 448, an action for illegal arrest and imprisonment, it appeared that the plaintiff, while shopping in the defendant's store, was requested to go downstairs, with which request she complied, being followed by a clerk, a superintendent, and a policeman, and that she was then charged with the larceny of a dress and searched, when, nothing being found, she was allowed to depart. There was a verdict for the plaintiff, and the court remarked that the question whether the plaintiff had been detained and searched against her will had been conclusively settled