Opinion
11-28-1949
GOGUE v. MacDONALD. Civ. 7701.
Harry W. Falk, Eureka, for appellant. Hill & Hill, Eureka, for respondent.
GOGUE
v.
MacDONALD.
Nov. 28, 1949.
Hearing Granted Jan. 26, 1950. *
Harry W. Falk, Eureka, for appellant.
Hill & Hill, Eureka, for respondent.
ADAMS, Presiding Justice.
This is an appeal from a judgment entered in behalf of defendant, MacDonald, after a demurrer had been sustained to an amended complaint which plaintiff declined to amend.
The amended complaint alleged that defendant had, on June 22, 1948, appeared before a justice of the peace in Humboldt County, and 'made complaint, on oath, * * * wherein he charged plaintiff with having committed the crime of misdemeanor, and then and there procured said justice of the peace to issue a warrant for the arrest of plaintiff on said purported charge.' (Italics added.) The criminal complaint sworn to before the said justice of the peace was then set forth, it being alleged therein that defendant Gogue had wilfully and unlawfully defrauded Eugene W. MacDonald by taking and moving his belongings, including his household effects, from a cottage between sunset and sunrise on a given date, and without paying rent due plaintiff amounting to $95, all with the intent and purpose of defrauding, and in violation of Penal Code section 537. The complaint ended with a prayer for the arrest of Gogue. The complaint in this action then further alleged that the justice of the peace had issued a warrant for Gogue's arrest, and that he had been arrested by the sheriff, and held on bail, which he was unable to furnish, and was imprisoned for a period of approximately eight days, when the complaint was dismissed. Plaintiff then alleged injuries by reason of expenses incurred in defending himself, and loss of wages, etc., for which he prayed damages in the sum of $12,500.
It is conceded that the criminal complaint failed to allege a violation of Penal Code section 537 which makes it a crime to defraud an innkeeper. The question then is does the amended complaint in this case state a cause of action for damages for false imprisonment.
In Krause v. Spiegel, 94 Cal. 370, 373, 29 P. 707, 15 L.R.A. 707, 28 Am.St.Rep. 137, the complaint alleged that defendant appeared before a justice and falsely and maliciously and without reasonable or probable cause, made a verified complaint charging plaintiff 'with having committed slander of and concerning defendant,' that he procured the justice to issue a warrant for the arrest of plaintiff upon said charge; that such a warrant was issued and plaintiff was arrested and imprisoned for six hours, but was eventually discharged. The trial court ruled that the complaint did not state facts sufficient to state a cause of action for malicious prosecution, and that, in so far as it charged false imprisonment and libel, it was barred by section 340(3) of the Code of Civil Procedure. On appeal the court said that the only question was whether a cause of action for malicious prosecution was stated. It cited cases showing a diversity of opinion. But it also said, 94 Cal. at page 373, 29 P. at page 708: 'This case is not like any of those before referred to. Here no criminal prosecutional was commenced or prosecuted against the plaintiff. The only charge made before the magistrate was that the plaintiff had slandered the defendant. This was not a charge of a criminal act, and it furnished no ground whatever for the issuance of a warrant of arrest. But when the warrant was issued, and the plaintiff was arrested and imprisoned under it, a cause of action for false imprisonment at once arose in his favor; and, if suit had been brought in time, it could without doubt have been maintained.'
In De Courcey v. Cox, 94 Cal. 665, 30 P. 95, the action was for damages for false imprisonment. Demurrer was overruled and defendant answered; there was then a motion by defendant for judgment on the pleadings, which was granted. On appeal the Supreme Court said that the complaint upon which defendant was imprisoned charged De Courcey with having wrongfully retained money overpaid her by mistake; and that defendant proceeded upon the charge as he might have done had it constituted a crime, which it clearly did not. The opinion states, 94 Cal. at page 669, 30 P. at page 96: 'In the case now before us the complaint shows that no warrant could legally be issued upon the complaint made against the appellant; that she was not convicted or adjudged guilty of any crime. She was charged with the commission of an act which did not constitute a crime, and therefore the defendant never acquired any jurisdiction to proceed in the matter, and the judgment and commitment are void on their faces. These facts appearing in the complaint, coupled with the arrest and imprisonment of appellant, certainly constitute a cause of action, and the court erred in granting the motion for and entering judgment for the defendant upon the pleadings.' That decision was cited and followed in Manning v. Ketcham, 6 Cir., 58 F.2d 948, 949.
In Howe v. Owsley, 123 Cal.App. 550, 11 P.2d 663, an action for malicious prosecution, after judgment for plaintiff, a new trial was granted. The complaint upon which the plaintiff was arrested and imprisoned was almost identical with the one now before us; and it, also, was subsequently dismissed. It stated no cause of action for criminal prosecution. This court said, 123 Cal.App. at page 553, 11 P.2d at page 664: '* * * that if a warrant of arrest was improperly issued directing the arrest of the plaintiff on the charge of having defrauded an innkeeper, it was the mistake or act of the justice of the peacef and that while the defendant might be liable for false imprisonment for procuring the justice to issue a warrant of arrest based simply upon a statement of acts not constituting a crime, and upon an information not charging the plaintiff with a crime, no basis is laid upon which an action for malicious prosecution could be predicated.' Also 123 Cal.App. at page 556, 11 P.2d at page 665: 'The concluding portion of the complaint praying that a warrant for the arrest of the plaintiff, and that he be dealt with according to law, might furnish the basis for an action against the defendant as an actor in bringing about an unlawful and false imprisonment of the plaintiff.'
Also see Nelson v. Kellogg, 162 Cal. 621, 123 P. 1115, Ann.Cas.1913D, 759, an action to recover damages for false imprisonment following an arrest on civil process not allowable because the person arrested was a female. There it was said that the magistrate had no jurisdiction to issue the warrant; and judgment allowing damages to plaintiff was affirmed.
Also see Peters v. Bigelow, 137 Cal.App. 135, 30 P.2d 450; Collins v. Owens, 77 Cal.App.2d 713, 719, 176 P.2d 372.
Kuhn v. McNeal, 41 Ohio App. 485, 181 N.E. 153, is a case similar to this one, it being an action for false imprisonment on a criminal complaint which pretended to charge McNeal with defrauding an innkeeper, but stated no such crime, and upon which complaint the party charged was arrested and imprisoned. On appeal from a judgment in favor of plaintiff the court said that the criminal complaint did not charge an offense, as the premises which had been occupied and for which rent was due, were not within the statute. The court adhered to a rule laid down in an earlier case to the effect that where a justice of the peace, without authority of law, issues a warrant of arrest, both he and the person at whose instance he so acts are liable in an action for false imprisonment at the suit of the party illegally arrested by virtue of such warrant.
In Jones v. Grooms, 56 Ohio App. 351, 10 N.E.2d 958, the rule applied in the Kuhn case was reiterated, and it was held that a demurrer to the complaint in an action for false imprisonment was erroneously sustained. Also see Duncan v. Piper, Tex.Civ.App., 79 S.W.2d 172, 174-175; Strozzi v. Wines, 24 Nev. 389, 55 P. 828, 57 P. 832, 834; McKelvey v. Marsh, 63 App.Div. 396, 71 N.Y.S. 541; Maher v. Potter, Sup., 112 N.Y.S. 102; Yahola v. Whipple, 189 Okl. 583, 118 P.2d 395, 397, citing Strozzi v. Wines, supra.
Respondent relies upon certain language used in the opinion in Stubbs v. Abercrombie, 42 Cal.App. 170, 183 P. 458. But in that case the criminal complaint did state a crime, and the court said, 42 Cal.App. at page 176, 183 P. 458, that the justice who issued the warrant acted legally and that the arrest of the plaintiff under such warrant was legal. Furthermore, there was a trial in that case, while in the case now before us, the only question is whether the complaint states a cause of action. In Stubbs v. Abercrombie, the portion of the opinion relied upon by respondent, 42 Cal.App. at page 177, 183 P. at page 461, is: 'Even if the criminal complaint had lacked the proper allegations to set forth facts sufficient to constitute a public offense, still, under the facts disclosed by the record here, the defendant, Mary E. Abercrombie, would not be liable.' But that statement does not refer to the sufficiency of the complaint, but to the facts disclosed upon a trial of the case. Respondent states in his brief that he made known certain facts to the Justice of the Peace, and 'having been informed that the stated facts constituted a crime,' he signed the complaint; he also says that he 'signed a paper prepared by the Justice of the Peace' stating certain facts. The complaint, however, does not reveal that such were the facts. It alleges that defendant 'procured said justice of the peace to issue a warrant for the arrest of plaintiff'; and in the complaint he prayed for the arrest of plaintiff in this action. Respondent thus tacitly admits that facts not stated in the complaint in the false imprisonment action must be shown by him in order to relieve him from liability.
In People v. Agnew, 16 Cal.2d 655, 660, 107 P.2d 601, 603, the court quoted from 22 Am.Jur., P. 359, as follows: 'If an act is done with the intention of causing the confinement of the person actually confined or of another and such act is a substantial factor in bringing about a confinement, it is immaterial whether the act directly or indirectly causes the confinement.' Also see Frickstad v. Medcraft, 100 Cal.App. 188, 194, 279 P. 840, citing Miller v. Fano, 134 Cal. 103, 66 P. 183.
It may well be that on a trial of the action respondent may be able to prove what he argues here, that the arrest and imprisonment of Gogue were not due to action on his part but were the result of false advice given him by the justice of the peacef but in view of the general policy in this state to allow liberality in pleading and to determine causes on their merits rather than on the pleadings alone, we think that the trial court erred in holding that plaintiff's complaint failed to state a cause of action.
The judgment is reversed with directions to the trial court to overrule the demurrer.
PEEK and THOMPSON, JJ., concur. --------------- * Subsequent opinion 218 P.2d 542.