Skip to main content


Reset A A Font size: Print

District Court of Appeal, First District, Division 2, California.


Civ. 15705.

Decided: March 19, 1954

Cosgriff, Carr, McClellan & Ingersoll, Burlingame, for appellant. Roy W. Seagraves, Burlingame, for respondent.

In an action for false imprisonment plaintiff had judgment for $200 special damages and $700 general damages (no exemplary damages). By consent, to avoid granting of a new trial, the total recovery was restricted to $700. Defendant appeals.

As the case turns mainly on by whom and for what cause Peterson was arrested or could be arrested, the facts must be stated in some detail. On the evening of July 20, 1951, plaintiff Peterson after having had four old fashioneds and dinner in a restaurant on Burlingame Avenue in Burlingame in leaving with his car did not back up far enough and hit the car of defendant Robison parked nearby so that the Robison car was pushed on the sidewalk and over a parking meter. Peterson testified that he was not drunk and that he put a slip of paper with his name and address on the windshield of the Robison car before leaving. However, the witness Bowring, a bystander, was positive that Peterson did not put the slip there but that he gave the slip to the witness. Bowring added the license number and the make of the car. When Robison returned to his car Bowring gave him the slip and told him that it was the license number of the man who did it. He did not tell Robison that Peterson himself had written his name and address. Nobody saw a paper on the windshield.

Robison reported by telephone to the Burlingame police that an accident had happened to his car and a parking meter. Sergeant Todd, then in charge of the watch, testified that he received a report of a 481 California Vehicle Code (hit run involving property damage only) and detailed officer Watson to investigate. Watson gave Todd the description of Peterson's car and Todd gave to the main police station in Redwood City an all point radio bulletin for the car, which bulletin was broadcasted from Redwood City. The call was received by police officers Johnston and Bianchini of South San Francisco. They spotted the car and followed it. The car went much slower than the normal 55 miles and weaved a little over the white line between the fast and the slow lane. They stopped it. They told the driver that he was wanted for hit and run in Burlingame. They placed him under arrest for the Burlingame Police Department and so informed him. It was 9:43 p. m. when he was put under arrest. Bianchini took him in the police car to the South San Francisco Police Station and on the way informed the station of what they were doing and to notify the Burlingame police to pick the man up. Johnston drove the Peterson car which was impounded in South San Francisco. Both officers testified that Peterson was under the influence of liquor. His condition was bad enough to book him for 502 California Vehicle Code (driving under influence of liquor) but they did not book him for it and did not give him a sobreity test, because a more serious offense was committed in Burlingame and they did not want to harass the man twice. At the station he was booked ‘en route to Burlingame 481 CVC’ and searched.

In Burlingame Sergeant Todd received the communication and officer Watson then went to South San Francisco. He arrived at the police station when officer Bianchini was booking Peterson. Peterson was somewhat belligerent as to Watson. Bianchini had Watson sign the arrest log and turned Peterson over to him. The South San Francisco Arrest Report indicates that Peterson was released to Officer Watson at 9:57 p. m. Peterson testified that Watson picked him up at the South San Francisco station. When Peterson asked him what he was picking him up for, he told him on 481, hit run. Watson testified that he did not arrest Peterson. Watson suggested that Peterson come down to Burlingame to try an amicable agreement with the owners. Watson then took him to the Burlingame Police Station.

Watson had told the Robisons to come to the police station and they did so after having taken care of their car. When he received the communication from South San Francisco, Sergeant Todd told the Robisons that they had the man and that it would help the police if they made a citizen's arrest. He explained how a citizen's arrest was made. Robison asked why he should arrest the man, having no malice toward him, and Mrs. Robison asked whether they should not call their lawyer, but Todd said no, he knew how to handle this. It was unnecessary to bother the attorney at the late hour.

Todd also asked Mr. Robison to sign a printed form requesting assistance of the Burlingame police as to the citizen's arrest. There is a conflict in the evidence as to the time of the signing of the form although there is a stipulation as to the signing itself. The form contains a request to the police to assume custody and detention until a complaint is signed. Robison testified that he did not read the form before signing it at the instance of Sergeant Todd. All witnesses agree that Robison never orally asked that Peterson be arrested or locked up.

The actual citizen's arrest was made by Robison by laying his hand on Peterson's shoulder and saying ‘I arrest you in the name of the law.’ He did it only at the suggestion of the authorities and did not know specifically what he arrested him for. After the arrest was made Todd told Mr. and Mrs. Robison to leave; they (the police) would take care of the rest.

Peterson was then booked by Todd. The record states that he was arrested at 10:15 at South San Francisco, arresting Officer Watson; complainant Merritt Robison, charge ‘Sec. 1279 (In & About) 481 C.V.C.’ Officer Watson testified that section 1279 is a city ordinance and covers a person being intoxicated in a public place or in and about an automobile. Both he and Sargeant Todd testified that when Peterson was in the Burlingame Police Station he was under the influence of intoxicating liquor. Todd testified further that he had oral instruction from the Chief of Police not to release intoxicated persons until they sobered up. In the meantime they put them in the cell block. Peterson was placed in jail on the authority of Todd as in charge of the watch. His reason for jailing Peterson was that Peterson was intoxicated and therefore not admissible to bail. Before midnight when Todd went off duty he went to Peterson. Peterson was coming out of his intoxication. Todd asked him if he would like to be admitted to bail but Peterson did not want to. He was released the following morning by the day officers after $150 bail had been posted. It was Todd's understanding that the arrest by Robison was taking care of the 481 California Vehicle Code involving damage to Robison's car but that the police were taking care of the ‘1279 in an about’. However no arrest by any officer for the 1279 was made; plaintiff was only booked for it. There was a hearing before a magistrate (in the Police Court) but no charge was there made for either offense. Robison was asked to sign a complaint but he refused. The case was dismissed on the record of the Burlingame police on July 31, 1951, for that reason. Todd would also have put Peterson in custody for being intoxicated if Robison had not made the arrest, but then the charge would have been 1279 in and about a car. He had Robison make and sign the citizen's arrest to get his cooperation in the prosecution of the 481 charge.

It must be noted that from the beginning plaintiff objected to the introduction of evidence as to anything that happened prior to the arrest by Mr. Robison. Defendant then amended his answer, which had consisted of denials only, so as to allege that the arrest was justified because plaintiff being intoxicated had been driving an automobile on the public street in the presence of the arresting officer. Nevertheless much prior matter was excluded; however, later the court decided to let such evidence go in ‘with the understanding that this entire line of testimony would be subject to a motion to strike in the event that no legal theory is established upon which to predicate it.’ Near the end of the trial plaintiff wished to introduce rebuttal evidence as to these prior events (intoxication, etc.) although he declared that he considered all evidence relating to matters prior to the arrest by Mr. Robison immaterial. He moved to strike it all out. If however it were not stricken he would need continuance to hear more rebuttal witnesses as to these points, especially witnesses to the fact that plaintiff was not drunk. It was then agreed with the court that if the court would rule that the whole line of evidence would not be excluded the court would grant a continuance. No continuance was granted and the record does not show any ruling as to the motion to strike.

Appellant makes use of the evidence as to prior circumstances in his brief on appeal. However, respondent takes the position that the fact that no continuance was granted constitutes a striking of all such evidence by implication. It would seem that all such evidence was material and should not have been stricken. If plaintiff at the time of a false arrest and imprisonment under 481 California Vehicle Code was also legally under arrest and in custody because of drunkenness the false arrest for hit-run would probably at most have caused nominal damage and at any rate all surrounding circumstances might be important with respect to exemplary damages claimed (but not granted).

It is indisputable that all offenses possibly involved are misdemeanors and that no warrant had issued. Under sections 836 and 837, Penal Code a legal arrest could therefore only be made by a peace officer or private person in whose presence one of the misdemeanors had been committed or attempted. The arrest for hit and run (481 California Vehicle Code) was therefore necessarily illegal as no part of it happened in the presence of either defendant or any officer. The South San Francisco officers could, if their testimony is believed, legally have arrested plaintiff for drunk driving but they expressly did not do so but arrested him only in behalf of the Burlingame Police for hit and run (481). Nobody in the Burlingame Police Office had been present when plaintiff was drunk in or about a car, and therefore nobody in Burlingame could legally make an arrest for this misdemeanor any more than for 481 California Vehicle Code. According to the testimony of Officer Watson, sec. 1279 of the Burlingame City Ordinance also covers a person being intoxicated in a public place, (the ordinance is not in the record) but all evidence as to the booking for 1279 relates to being drunk in and about a car and appellant's allegations in the amended answer were to the same effect. It must also be considered that section 849, Penal Code, reads: ‘When an arrest is made without a warrant by a peace officer or private person, the person arrested must, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the arrest is made, and a complaint stating the charge against the person, must be laid before such magistrate.’ It has been held that where there is unreasonable delay in taking a person arrested without a warrant before a magistrate, the arresting party becomes a trespasser ab initio and liable for false arrest and imprisonment, Peckham v. Warner Bros. Pictures, Inc., 36 Cal.App.2d 214, 218, 97 P.2d 472. In our opinion the same rule applies to failure to lay a complaint before the magistrate, a requirement contained in the same section, therefore said failure would vitiate all arrests in this matter.

Appellant contends first that he cannot be liable because plaintiff was deprived of his liberty by the arrest made in South San Francisco and even if appellant had not made the citizen's arrest, Todd would nevertheless have detained him in jail. Therefore appellant's acts were wholly ineffective to deprive respondent of his liberty. This reasoning can have some merit only if the other arrest under which respondent was detained was a valid arrest. If both the arrest by the police and by appellant were illegal, it would seem that all arresting parties would be equally liable. The rule must be the same as in negligence cases. Where two or more causes combine to produce a single harmful result, incapable of any logical division, each may be a substantial factor in bringing about the harm, and if so each may be charged with all of it. Prosser, Torts, p. 330; 19 Cal.Law Review 630 et seq. Appellant contends that the arrest was lawful because plaintiff Peterson was intoxicated in a public place, to wit, the Burlingame Police Office, in the presence of appellant (and of the police officers if any of them can be considered to have made any arrest at all in Burlingame). Respondent contends that he was not under arrest at all except for the citizen's arrest because Watson who, according to the booking by Todd, had arrested Peterson in South San Francisco denied that he had done so. Actually Peterson was arrested in South San Francisco by the two South San Francisco officers in behalf of the Burlingame Police Department and it seems that Peterson remained in custody when he was released by the South San Francisco Police to the Burlingame Police, although Watson in his testimony tries to keep away from any responsibility for false arrest. There is no doubt that if the arrest in South San Francisco is considered an arrest for 481 California Vehicle Code, it is unlawful. Perhaps it could be said that although the arrest was intended to be made for 481 California Vehicle Code it was lawful because in the presence of the officers Peterson was guilty of drunk driving, 502 California Vehicle Code, for which they could have arrested him. But on that basis he could not have been sent to Burlingame when he wished to return to his home in San Francisco.

In Burlingame nobody, according to the evidence, had the intention to arrest respondent because he was drunk in the police station and the question is again whether the fact that they could have done so is a justification for the arrest. In People v. Young, 136 Cal.App. 699, 29 P.2d 440, police officers tried to arrest people who were forming a parade with banners emblematic of radical organizations, the police officers thinking that this violated a city ordinance against the display of emblems likely to provoke a riot or breach of the peace. The ordinance was held unconstitutional but the arrest nevertheless lawful because breach of the peace, fighting between the paraders and the public, was taking place in the presence of the officers. The court said: ‘It has been held that if a public offense has actually been committed in the presence of an officer, and he attempts to make an arrest, though at the time he mistakenly believes a different offense has been committed, he is justified in making the arrest.’ 136 Cal.App. at page 703, 29 P.2d at page 442. But see to the contrary 22 Am.Jur. 412; Annotation 64 A.L.R. 653.

The same reasoning might validate the arrest made by appellant in Burlingame provided the offense had been committed in his presence. The fact that respondent was not informed that he was arrested on that ground is without importance as section 841, Penal Code does not require notification of the cause of arrest where the person to be arrested is actually engaged in the commission of an offense. However, there remains the question mentioned before whether the arrest is not vitiated by the fact that no complaint for being drunk in a public place was ever filed. In our opinion the arrest was illegal for failure on the part of appellant to comply with section 849, Penal Code.

Appellant contends as another ground for his non-liability that he acted under the command of the Burlingame Police Department, that he never asked them to arrest or imprison plaintiff, that he did not read the form he signed and only performed a certain ritual at the request of the police to assist them in their arrest. This contention is without merit. The acts done by defendant were not of the character of assistance to police making an arrest, section 839, Penal Code. Neither did he give information only on which the officers acted illegally. He took active part. The cases cited by appellant as to persons giving information only or not taking part in such a manner as to be the cause of the arrest, or assisting an officer, are not in point. That the Robisons were aware that they were asked to do acts which might involve responsibility is shown by their wish to consult their attorney. Mr. Robison was not acting under duress. 22 C.J.S., Criminal Law, § 44, page 99. In such a case misunderstanding of the law, bad legal advice received, 22 C.J.S., Criminal Law, § 48, pages 114–115, and acting under direction of others are no excuse. 22 C.J.S., Criminal Law, § 39, page 96. Still less can it be considered an excuse that defendant signed the citizen's arrest form without reading it. If he had read it he would have received a clear warning from the words ‘a complaint committed in my presence’ contained in it and from the request to the police ‘to assume custody and detention until such time as may be required by me to obtain a written and signed complaint.’

It is finally argued that the damages granted are excessive. The trial judge after hearing the evidence made findings: 1. That plaintiff was compelled to pay $200 counsel fees to obtain his discharge; (finding III) 2. That plaintiff was injured in his good name and reputation, subjected to humiliation from the citizens of San Mateo County and among his friends and acquaintances (finding IV); 3. That by reason of his arrest and imprisonment a story appeared in the Burlingame Advance and plaintiff was injured irreparably with his employer and customers (finding V). The trial judge concluded from this that plaintiff had been damaged in the sum of $900. On motion for new trial he reduced this to $700.

Finding III is supported by plaintiff's testimony that when released on bail he was told to appear in court on Tuesday morning, that he hired an attorney who appeared with him on Tuesday at which time the charge was dismissed. There is no justification in the record for the statements that the attorney was hired to prevent an arrest or that when the attorney was employed the ‘hit and run’ charge had been dismissed. The record is to the contrary.

Finding IV is supported by testimony that customers came into the store, brought up the subject of his arrest and left without making any purchases, ‘it was very embarrassing.’ Customers came in and asked him: ‘What's this I hear about you getting thrown in jail for hit and run?’

Finding V is supported by the evidence cited under Finding IV. Also by testimony that plaintiff's sales fell off in volume, while the business in which he was employed was better. Also his employer informed him that if anything like that happened again ‘I could consider myself finished.’

The question of the amount of damages is primarily for the jury and for the trial judge on motion for new trial. It is only by reweighing the evidence in this case that we can conclude that the judgment ‘is so grossly disproportionate to any reasonable limit of compensation warranted by the facts as to shock the sense of justice and raise at once a strong presumption that it is based on prejudice or passion rather than sober judgment.’ Deevy v. Tassi, 21 Cal.2d 109, 120–121, 130 P.2d 389, 396. The same case warns us at page 121 of 21 Cal.2d, at page 396 of 130 P.2d that ‘in the cloistered detachment of our chambers, without view of the parties or their witnesses and in the absence of awards obviously disportionate to the facts, we should not assume that we are better equipped than were the citizen-jurors (in this case the trial judge) * * * to appraise all those elements of damages entering into the case * * *.’

We cannot say as a matter of law that the evidence before the trial court does not justify the award as reduced by the trial court on the motion for a new trial.

In view of the foregoing, we conclude that the arrest of respondent by appellant was illegal and that there is no prejudicial error in the record.

Judgment affirmed.

I dissent.

This is a case of damages for ‘false imprisonment’ which did not occur. Plaintiff was not imprisoned because of any act of the defendant. The pertinent facts are stated in the majority opinion from which I quote in part: ‘Peterson was then blooked by Todd. The record states that he was arrested at 10:15 at South San Francisco, arresting Officer Watson; complainant Merritt Robison, charge ‘Sec. 1279 (In & About) 481 C.V.C.’ Officer Watson testified that section 1279 is a city ordinance and covers a person being intoxicated in a public place or in and about an automobile. Both he and Sergeant Todd testified that when Peterson was in the Burlingame Police Station he was under the influence of intoxicating liquor. Todd testified further that he had oral instruction from the Chief of Police not to release intoxicated persons until they sobered up. In the meantime they put them in the cell block. Peterson was placed in jail on the authority of Todd as in charge of the watch. His reason for jailing Peterson was that Peterson was intoxicated and therefore not admissible to bail. Before midnight when Todd went off duty he went to Peterson. Peterson was coming out of his intoxication. Todd asked him if he would like to be admitted to bail but Peterson did not want to.'

Imprisonment on the ‘citizen's arrest’ could not be made without a warrant. No warrant was issued, hence no damage from the ‘arrest’, and no imprisonment resulted from the ‘citizen's arrest.’ Imprisonment for drunkenness was strictly in accord with the law since the plaintiff was intoxicated in the presence of the booking officer. All the officers who observed plaintiff at the time testified that he was then intoxicated. For that reason the South San Francisco police refused to let plaintiff drive his car and one of them took him in a police car to the Burlingame Station. The duty of the Burlingame police under such circumstances was to restrain the party until he became sober.

If the controversy over the admission of the evidence of plaintiff's intoxication implies that the trial court might have excluded it, such act would have been clear error. The undisputed evidence is that plaintiff was ‘booked’ for intoxication. This booking constituted the only ‘false imprisonment’, and it is on that act alone that the judgment for damages rest. But that imprisonment was the act of the police alone—the defendant herein did not suggest it.

Manifestly the citizen's arrest made by the defendant under order of the police caused no damage to the plaintiff. It was the imprisonment, and that only, upon which the cause of action, and the judgment, must rest. Though the complaint was one for ‘false arrest and imprisonment’ the findings and judgment are based wholly on the issue of imprisonment. Plaintiff endeavored to show that his imprisonment was due to the false arrest, but all the evidence, both oral and documentary, was to the contrary. Plaintiff was imprisoned and restrained because he was drunk, and was told that he would be released when he became sober. If he had any case for damages it was against the Burlingame police who acted on their own volition in jailing him for ‘intoxication’.

Furthermore the award of damages is excessive. The only actual damage proved was respondent's payment to his attorney of $200 to prevent an arrest, and to defend him against charges that had not been and never were filed. At that time the ‘hit and run’ charge had been dismissed. What faced respondent then was the charge of drunken driving. With that charge appellant had nothing to do. When respondent's counsel succeeded in having him freed from the drunk driving charge it was a payment in relation to that charge only. The respondent remained through the night in the Burlingame jail of his own volition. He was offered his release, but refused. He did not have to pay counsel to obtain such release.

Four police officers who saw respondent's condition testified that he was intoxicated. He was not permitted to drive his car to the Burlingame Station for that reason. Manifestly his retention in the police station was for his own benefit, and through that act he suffered no injury. But if any injury could be implied, it did not come from the act of the appellant, but was confined solely to the acts of the Burlingame police in booking him and confining him for intoxication.

There is no sense at all in charging a private citizen with damages for reporting to the proper police officers that a drunken driver had crashed into his car on a public highway, when such charge is admittedly true and made without malice.

The rights of a private citizen in cases of this kind are well stated in the opinion of Justice Schauer, in Turner v. Mellon, 41 Cal.2d 45, 257 P.2d 15, 17, as follows: ‘We think it serves the public interest—and, hence, the line should be drawn here—that citizens who have been criminally wronged may, without fear of civil reprisal for an honest mistake, report to the police or public prosecutor the facts of the crime and in good faith, without malice, identify to the best of their ability to such public officers the perpetrator of the crime. Investigation and action from then on are the responsibility of the public employes who are skilled in that work and who are paid to perform it.’

The judgments should be reversed.

KAUFMAN, Justice.

DOOLING, J., concurs.

Copied to clipboard