HUGHES v. OREB (1950)

Plaintiff appeals from a judgment of nonsuit against him as to defendant Oreb; from the judgment on a directed verdict as to defendants Greenwood and Ledbetter; and from the order (nonappealable) denying his motion for a new trial. (The City of Los Angeles was originally named as a defendant, but the action as to it was dismissed before trial.)

The facts which gave rise to plaintiff's cause of action for false arrest and imprisonment in which he sought conpensatory damages of $25,000 and $10,000 exemplary damages, are as follows:

On February 1, 1948, at about 12:30 a. m., plaintiff entered the Hawaiian Gardens, an establishment owned and operated by Nick K. Oreb in San Pedro. According to plaintiff's testimony, he ordered two drinks for which he paid with silver dollars, receiving some change each time. He testified that during the evening he noticed three men watching him and he later identified these men as Oreb, and Officers Ledbetter and Greenwood; that when he started to get down from his stool at the bar he backed into one of these men (Officer Greenwood) who asked him where he was going; he replied that he was going home ‘if it is any of your business,’ whereupon the officer informed him that he had better ‘come with us.’ The two men, who were in plain clothes, took plaintiff's arms and informed him that they had some questions to ask him. Plaintiff objected to the restraint and told the men, whom he did not as yet know to be police officers, that if they had any questions to ask him it could be done there. Apparently they then told plaintiff that they were police officers but refused to prove it to him and when plaintiff resisted them, handcuffs were put on him and he was taken to a car outside the bar. On the way out of the establishment plaintiff asked some of the patrons to witness what was happening to him—that he was being kidnapped. The officers took plaintiff to the San Pedro police station where a momentary stop was made at the booking desk before plaintiff was taken to a closed room where the handcuffs were removed and he was searched and questioned over his resistance. He testified that Officer Greenwood ‘kicked me in the groin with his knee, he struck me in the stomach with his fist, and when I bent over he struck me in the face, and I pleaded with him not to strike me again. He said, ‘Are you going to answer our questions?’ I said, ‘Yes. Give me a moment to recover.’' After he had been questioned and searched he demanded to know why he had been brought there and was informed that he was being booked ‘on suspicion of 459.’ Plaintiff testified that he had previously demanded permission to get in touch with his attorney and that Officer Ledbetter had said, ‘What are you doing with an attorney, wise guy?’ and that he ought to know what ‘suspicion of 459’ meant since he had an attorney. (Evidently the charge was later explained to him.) Plaintiff was not allowed to call either his attorneys or his mother because both of the calls would have resulted in charges. Subsequent to the searching and questioning of plaintiff he was taken to the booking desk and from there to a cell where he was confined, except for meals, for thirty three hours. On the Monday morning following his arrest he was questioned again by two men in plain clothes as to where he had been on a certain night and where he got the two silver dollars used to pay for the drinks. He testified that this was the first time he had heard any mention of the silver dollars. After this questioning, he was fingerprinted, samples of his handwriting were taken, and after he had regained possession of his personal effects, he was released from custody. After his release, plaintiff went back to the Hawaiian Gardens to get his hat, which he had left on the night of his arrest, and at that time had a conversation with Nick Oreb who told him that his home had been burglarized and some silver dollars taken the night before plaintiff's arrest, that ‘they had been picking up everybody who passed silver dollars, that they had picked up a boy or two on Sunday, at about ten a. m., who had admitted burglarizing his (Oreb's) home, and that he had an appointment to go down there and identify his property, confront the suspects' who had confessed 24 hours before plaintiff was released from jail.

At the close of plaintiff's testimony, his attorney rested and the attorney for Nick K. Oreb moved for and was granted a nonsuit on the ground that there was no proof of any allegation of the complaint so far as defendant Oreb was concerned.

The first question presented for determination is whether the trial court was justified in granting the motion of nonsuit as to defendant Oreb.

A motion for a nonsuit involves the legal effect of admitted facts. When made at the close of plaintiff's case it in purpose and effect operates as a demurrer to the evidence, assuming that all the evidence in favor of the plaintiff, if relevant to the issues, is true. It is well settled that all the evidence and reasonable inferences must be construed most strongly in favor of the plaintiff, all contradictory evidence being disregarded. 9 Cal.Jur. 551, 552, 553; Milana v. Credit Discount Co., 27 Cal.2d 335, 343, 163 P.2d 869, 165 A.L.R. 621; Barnett v. La Mesa Post No. 282, 15 Cal.2d 191, 99 P.2d 650.

Plaintiff alleged that on February 1, 1948, at about 1:00 o'clock a.m., the defendant Nick K. Oreb did wilfully, deliberately, and without any legal cause, direct and cause two police officers to arrest him and take him into custody and confine him in jail, without any warrant or other authority, that he has suffered damages, etc., and that he was not guilty of any crime.

One is liable for false imprisonment who participates in the unlawful arrest or imprisonment, or who authorizes, encourages, directs, or assists an officer to do the unlawful act, or procures an unlawful arrest without process. Kaufman v. Brown, 93 Cal.App.2d 508, 209 P.2d 156; Collins v. Owens, 77 Cal.App.2d 713, 176 P.2d 372; Miller v. Fano, 134 Cal. 103, 66 P. 183; 12 Cal.Jur. 433, 434; Friskstad v. Medcraft, 100 Cal.App. 188, 279 P. 840; Wood v. Lehne, 30 Cal.App.2d 222, 226, 85 P.2d 910; Montalbano v. Rainbow Gardens, Ltd., 9 Cal.App.2d 661, 50 P.2d 972; Moffatt v. Buffums', Inc., 21 Cal.App.2d 371, 375, 69 P.2d 424. The question is whether plaintiff's evidence met this test. Inasmuch as all plaintiff need allege and prove to constitute a cause of action for false arrest and imprisonment is that he was, at the instigation of defendant, arrested and imprisoned without process, and the damages suffered because of such arrest and imprisonment, it would seem that the judgment of nonsuit should not have been granted. From plaintiff's testimony, as to his conversation with defendant Oreb, we find that Oreb said ‘he was very sorry that this ever happened, and that he (Oreb) shouldn't have even reported it to the police, but that he didn't have any more use for the cops that I had, but that he was paying taxes and entitled to their cooperation in the protection of his property;’ also that the police were picking up everybody who passed silver dollars. Taking the evidence most favorable to plaintiff, in support of his cause of action against defendant Oreb, as true, it was reasonable to infer that plaintiff was arrested because he had used silver dollars to pay for drinks purchased in the saloon and that Oreb had reported this to the two police officers knowing and intending that plaintiff would be arrested solely on the strength of Oreb's statement that plaintiff had passed silver dollars. According to his admission, Oreb knew that such arrests were being made. It may well be that this method of detecting the guilty person originated with the officers and that Oreb had not advised it. Nevertheless, if he knew or expected that an arrest would result from his pointing out plaintiff to the officers, it was a proper question for the jury whether he had such knowledge and intended to cause plaintiff's arrest.

Probable cause, on the part of defendant Oreb, to believe that plaintiff was the one guilty of burglarizing his home the night before the arrest was a matter of defense and disproof of probable cause was no part of plaintiff's case. Ah Fong v. Sternes, 79 Cal. 30, 21 P. 381; Collins v. Owens, 77 Cal.App.2d 713, 176 P.2d 372; People v. Agnew, 16 Cal.2d 655, 107 P.2d 601. The arrest without a warrant, and the imprisonment that followed, having been alleged and proved, a presumption arose that the imprisonment was unlawful and the burden rested upon the defendant to allege and prove the lawfulness or justification therefor. Kaufman v. Brown, 93 Cal.App.2d 508, 209 P.2d 156; People v. Agnew, 16 Cal.2d 655, 663, 107 P.2d 601.

False imprisonment is defined by section 236 of the Penal Code as ‘the unlawful violation of the personal liberty of another.’ Ware v. Dunn, 80 Cal.App.2d 936, 183 P.2d 128. Each case must be decided on its own facts to determine whether the particular defendant ‘authorized, encouraged [directed] or assisted’ an officer to arrest the plaintiff. Turner v. Elliott, 91 Cal. App.2d 901, 904, 206 P.2d 48, 49. The evidence produced by the plaintiff was sufficient to have supported a finding by a jury that it was at the instigation of defendant Oreb that plaintiff was arrested, without process, for a crime he did not commit. As we have pointed out, any justification defendant may have had was a matter of defense. People v. Agnew, 16 Cal.2d 655, 664, 107 P.2d 601. In the Agnew case, it was said that it should be a simple matter for the one assuming to make a citizen's arrest without process to show justification for such arrest if any such justification exists and that the facts constituting such claimed justification would ordinarily lie peculiarly within his knowledge. It would appear, therefore, that the trial court improperly granted the motion for a nonsuit as to defendant Oreb.

The other question presented for determination is whether the trial court was correct in directing a verdict in favor of defendant officers, Ledbetter and Greenwood. Section 836, Penal Code, provides that a peace officer may make an arrest without a warrant when a felony has in fact been committed and he has reasonable cause to believe the person arrested to have committed it; or on a charge made, upon a reasonable cause, of the commission of a felony by the party arrested. An officer is liable in damages as for false imprisonment if he makes an unlawful arrest without process for a felony without reasonable ground for believing the person arrested to have committed it. On the other hand, if reasonable grounds exist, the officer is not liable, even though the arrest is subsequently shown to be improper. Korkman v. Hanlon Dry Dock & Shipbuilding Co., 53 Cal.App. 147, 199 P. 880; Salo v. Smith, 25 Cal.App. 295, 143 P. 322; 12 Cal.Jur., p. 432. The court must determine, as a matter of law, whether the facts, as they appear, or are found to have existed, constituted probable cause or warranted a reasonable man in the belief that the charge was true. Van Fleet v. West American Ins. Co., 5 Cal.App.2d 125, 42 P.2d 378, 43 P.2d 557. ‘Belief,’ rather than ‘suspicion,’ that the person proposed to be arrested has in fact committed a felony, is required by Penal Code, section 836, before a peace officer is justified in making an arrest. Such belief must be founded upon relevant facts, circumstances or credible information conveyed to him. Cook v. Singer Sewing Machine Co., 138 Cal.App. 418, 32 P.2d 430. The facts presented at the time are determinative. People v. Hupp, 61 Cal.App.2d 447, 143 P.2d 84. The question of the existence of probble cause to believe that one is guilty of a crime must be determined as a matter of law from the facts and circumstances of the case. Hill v. Nelson, 71 Cal.App.2d 528, 162 P.2d 927; Michel v. Smith, 188 Cal. 199, 205 P. 113. A reviewing court is therefore not bound by the conclusions of the trial court in that regard. Allen v. McCoy, 135 Cal.App. 500, 27 P.2d 423, 28 P.2d 56; Michel v. Smith, supra. The rule which governs in the matter of nonsuits also applies to directed verdicts.

A review of the entire record with the above rule in mind reveals that plaintiff was arrested and imprisoned on suspicion of having committed a felony because he used two silver dollars to pay for drinks which he ordered in defendant Oreb's saloon the day after said defendant's home had been burglarized and a number of silver dollars taken therefrom. This, then, is the evidence from which the trial court found that defendant officers had probable cause to believe that plaintiff was the one who had burglarized defendant Oreb's home. We must decline to go on record as holding that possession by plaintiff of two or three silver dollars, without any other relevant circumstance, furnished reasonable ground for belief that he had stolen silver dollars from Oreb.

We conclude that the trial court improperly directed verdicts in favor of defendant officers Ledbetter and Greenwood, in that they failed to establish, as a matter of law, the defense of probable cause.

The judgments appealed from are reversed; the attempted appeal from the order denying a new trial is dismissed.

SHINN, Presiding Justice.

WOOD and VALLÉE, JJ., concur.