dissenting. This is a very close question and no doubt of little consequence to anyone other than Margaret Pounders. She is a 75 year old disabled widow w'ho w'as relegated to the confines of a nursing home against her w'ishes. As it is w'ith a large number of our senior citizens, she dreaded the thought of being placed in a nursing home. Appellant had been living with Gloria Gaines and her husband until one day Harold Gaines told Gloria Gaines when he returned from w'ork he wanted her to have appellant out of the house. Appellee Gloria Gaines found a room at Trinity Court Nursing Home, Inc., the other appellee in this action, and made arrangements to move appellant to the nursing home that same day, July 14, 1976. Appellee Gaines signed appellant Pounders into Trinity, where she remained until September 14, 1976.
There is much testimony concerning the shabby treatment appellant received and even more evidence on the excellent care and treatment she received during her two-month stay in the facility. Which version is true, if either, is beside the question for the purpose of this opinion. In order to reach the point of w'hether the appellant was falsely imprisoned, we must necessarily look at some of the facts. At some point in time, Laura Fulmer, a relative by marriage, found that appellant w'as staying at Trinity and proceeded to try to get the appellee (Trinity) to release Mrs. Pounders to her care as she intended to take her into her home to live. Trinity rejected the request of Mrs. Fulmer and informed her it was the policy of Trinity to release residents of the home only to the party who entered them into the facility. Mrs. Fulmer finally consulted attorney J. Harrod Berry about getting Mrs. Pounders released to Mrs. Fulmer. The following day, Mr. Berry called Mr. Brummett at Trinity and told him he felt Mrs. Pounders had a right to leave the home if she was able to leave, especially if she appeared competent. He finally stated that, in his opinion, appellant was entitled to be released, period. Brummett again explained to the lawyer that it was the practice of the facility not to release a resident to anyone without the approval of the party who brought them to the nursing home. Mr. Berry then talked with appellant in person in the nursing home and understood clearly she wanted to leave the place. Mr. Berry felt she was in full possession of her faculties. Again he went to see Mr. Brummett, who still refused to release Mrs. Pounders without the approval of Mrs. Gaines. After the attorney threatened to file a petition for a writ of habeas corpus, Trinity decided to release appellant. She was released to Mrs. Fulmer on the same date, after Mrs. Gaines came and approved it. There is little, if any, dispute on the above-stated facts.
It should be noted that the appellant had not been adjudicated as an incompetent, nor had a guardian been appointed for her. In other words, all the activities involved in this matter were outside the judicial process. Those parties were as encumbered or unencumbered from the law as the other free citizens of the state.
Ark. Stat. Ann. § 41-1704(1 )(Repl. 1977) states:
“ (1) A person commits the offense of false imprisonment in the second degree if, without consent, and without lawful authority, he knowingly restrains another person so as to interfere substantially with his liberty.”
This, of course, was not a criminal proceeding. However, it is an accurate description of what constitutes false imprisonment. In false imprisonment cases the primary right involved is the liberty of the citizen, which is guaranteed by the state and federal Constitution. Except for prohibition by law, a person is free to come and go, or stay, if he/she is not violating the rights of others. Mrs. Pounders was entitled to be free from restraint and to leave the nursing home if she chose to do so. There was no legal right for either of the appellees to restrain the appellant against her will. Imprisonment has been defined in Watkins v. Oaklawn Jockey Club, 86 Fed. Supp. 1006, and quoted with approval in Pettyjohn v. Smith, et al, 255 Ark. 780, 502 S.W. 2d 618 (1973) as:
“Every confinement of the person is an imprisonment, and any express or implied threat or force whereby one is deprived of his liberty or compelled to go where he does not wish to go is an imprisonment.”
In other jurisdictions, Griffin v. Clark, 42 P. 2d 297, the Idaho Supreme Court stated:
“In false imprisonment or unlawful restraint, the primary right involved is the liberty of the citizen; the right of freedom of locomotion; the right to come and go or stay, when or where one may choose . . . There need be no actual force or threats, nor injury done to the individual’s person, character, or reputation. Neither is it necessary that the wrongful act be committed with malice or ill will, or even with the slightest wrongful intention. . .”
If appellant was prevented against her will from going from the Trinity Court Nursing Home, Inc. at any time she so desired, she was falsely imprisoned. There was ample evidence in the record from which the jury could have found she was prevented from leaving the home at the time she wanted to leave. It may have been for only a few hours duration but, is, nevertheless, detention against her will, if her testimony is believed.
The court in this case gave the following as the definition of what constitutes false imprisonment:
“False imprisonment means to be in custody against your will, to have restraints, such as chains, handcuffs, locked doors, barriers or keeping someone behind walls or within the premises, under a hidden identity or things of that nature. And in this case, there is absolutely no evidence of forced coercion, threats of any kind made to this lady to keep her there.”
The trial court limited the definition of false imprisonment to the extent that, if correct, it was proper to dismiss the complaint as to both appellees. However, the definition of false imprisonment is not so limited as stated, and the evidence as to Trinity was sufficient to go to the jury. The evidence as to Gloria Gaines was insufficient to go to the jury even under the more liberal interpretation and the trial court was correct in directing a verdict in favor of appellee Gloria Gaines.
On numerous occasions this Court has decided the question as to when a directed verdict is proper. These cases all hold to the effect that, when considering whether to direct a verdict for the defendant, the evidence must be considered in the light most favorable to the plaintiff and if there is any substantial evidence on which the jury could base a finding of negligence on the part of the defendant, the verdict should not be directed. Garrett v. A.P. & L., 218 Ark. 575, 237 S.W. 2d 895 (1951). A directed verdict should be granted for the same reasons a summary judgment should be granted. A summary judgment should not be granted if it is inconsistent with any reasonable hypothesis which might reasonably be drawn from the proper evidence before the court. Betnam v. Ross, 259 Ark. 820, 536 S.W. 2d 719 (1976).
For these reasons, the case should be affirmed as to Gloria Gaines and reversed and remanded as to Trinity Court Nursing Home, Inc.
Byrd, J., joins in the dissent.