Opinion
July 14, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Marilyn T. Meadoff, Denver, for plaintiff in error.
Yegge, Hall, Treece & Evans, Wesley H. Doan, Denver, for defendants in error.
PIERCE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here in the same order as in the trial court and will be referred to hereinafter by name. The Riveras are private citizens; the other named defendants are police officers. This was an action for False Arrest and Imprisonment, Malicious Prosecution, and Assault and Battery, arising from two separate incidents. The first incident took place on July 9, 1964. Plaintiff alleged that on that date she was harassed by Mr. Rivera, causing her to call police. Officers Orecchio and Peterson responded, talked with plaintiff and the Riveras, and then departed. Some 30 minutes later, however, the Riveras called police to report that plaintiff had threatened them with a gun from across the alley between their respective homes. Officers Soneff and Steen responded to this call and, after discussing the matter with the Riveras, recalled Officers Orecchio and Peterson for a briefing on plaintiff's earlier complaint, and then summoned their watch supervisor, Sgt. Bates, to the scene.
After some discussion, the officers contacted plaintiff and, following conversation with her (the substance of which was disputed at trial), arrested her without a warrant and escorted her, resisting, to a police car. They then took her to jail, after which they charged her with Carrying a Concealed Weapon, Flourishing a Weapon, and Disturbance.
Plaintiff was subsequently tried only on the disturbance charge, and was acquitted.
The second incident occurred on August 14, 1964, when the Riveras allegedly assaulted plaintiff in her backyard, causing her various injuries and causing her to be hospitalized for five days. While hospitalized, the Riveras apparently signed a complaint against plaintiff in connection with this incident, on which she was arrested, subsequently prosecuted, and also acquitted.
The claims arising from these two incidents were consolidated for trial. After all the evidence, the court dismissed plaintiff's claim against the officers, and entered default judgment on her claim against the Riveras, since the latter did not appear for trial, awarding her $1.00 actual and $350 exemplary damages for the assault and battery, and $1.00 nominal and $500 exemplary damages for the malicious prosecution.
Plaintiff assigns as error the court's judgment of dismissal on her claim against the officers and its award of $1.00, only, actual damages for the assault and battery on her claim against the Riveras.
DISMISSAL AS TO THE OFFICERS
C.R.S. 1963, 39--2--20 determines when and by whom an arrest may be made, and so far as applicable to the instant case states that '* * * an arrest may be made * * * by an officer, when a criminal offense has in fact been committed, and he has reasonable grounds for believing that the person to be arrested has committed it.' Plaintiff argues that this statute requires (1) a showing that the offense was In fact committed; and (2) probable cause to believe the prospective arrestee committed it. Plaintiff maintains that since neither of these requirements were present in the circumstances surrounding the incident of July 9, 1964, defendant officers improperly arrested her; and that the court erred in dismissing her claim against the officers for false arrest and malicious prosecution.
The substance of plaintiff's argument is that probable cause ('reasonable grounds' in the statute) refers to the belief that the prospective arrestee committed an offense and not to the fact of commission of the offense itself, which plaintiff maintains must be shown to have been committed In fact; and that therefore an action for false arrest is sustainable if the alleged crime for which the arrest is made has not In fact been committed.
This interpretation is not that placed upon this statute by our Supreme Court. In Gonzales v. People, 156 Colo. 252, 257, 398 P.2d 236, 238, the Court stated:
'The terms 'probable cause' and 'reasonable grounds' are substantially equivalent in meaning. (citing cases). Probable cause exists where the facts and circumstances within the officers' knowledge, and of which they had a reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. (citing cases). In dealing with probable cause, one deals with probabilities. 'These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' (citing cases).
'We find that the officer had probable cause to arrest Marsh under the circumstances present in this case. * * * The officers' information and observation were clearly sufficient to warrant a man of reasonable caution to believe that an offense was being committed. * * *'
The principles of Gonzales, supra, control in the instant factual situation.
There was evidence in the record of the instant case, which we need not detail here, indicating that defendant officers had 'probable cause' to believe that an offense had been committed and that plaintiff had committed it. They could not, therefore, be held civilly liable for False Arrest, Imprisonment and Malicious Prosecution, even though they arrested plaintiff without a warrant and even though she was not convicted on any of the charges for which they arrested her.
Having lawfully arrested plaintiff, the officers were then entitled to use whatever force was reasonably necessary to take her into custody. People of State of Colorado for the Use of Little v. Hutchinson, 8 Cir., 9 F.2d 275; see also, W. Prosser, Law of Torts, s 26 (3rd ed., 1964). Plaintiff alleged abuse and use of excessive force by the officers in her arrest and thereafter when she was lodged in jail. This claim, however, was hotly disputed and was the subject of conflicting evidence.
The issue of excessive force and abuse was one of fact which the trial court, as finder of fact, was entitled to resolve. Its resolution is binding upon this Court if supported by evidence. Whatley v. Wood, 157 Colo. 552, 404 P.2d 537. We find the court's determinations in this regard supported by the evidence, as do we find its determinations with regard to physical abuse alllegedly heaped upon plaintiff by defendant officers while she was in jail. These will, accordingly, not be disturbed on review.
THE DAMAGES
Plaintiff also asserts error by the trial court in assessing only $1.00 actual damages for the assault and battery committed by the Riveras, for which liability was imposed by default. It is her contention that she should at least have had an additional $135 which represented her hospital bill admitted into evidence.
An examination of the record shows that plaintiff testified to personal injuries and property damage sustained by the alleged assault and battery. Her only attempt to prove any monetary amount of damages was in the form of the hospital bill.
The record further indicates that an assault and battery in fact did take place as the court found, and that plaintiff was taken directly from the scene of the incident to a hospital by a police officer. Plaintiff also testified as to the proximate causal relationship between the assault and her hospitalization. This testimony was uncontroverted.
In its conclusions in ruling on the motion for new trial, the court stated, '* * * after hearing the evidence, (the court) was not satisfied that the acts complained of by plaintiff resulted in her hospitalization.'
The question before us is, 'Must the testimony of the plaintiff, an interested witness, be accepted as to matters of damage and proximate cause, where the testimony is uncontradicted and is not, on its face, incredible or untrustworthy?'
The law in Colorado is well settled regarding this question. Bransall v. Industrial Commission, 126 Colo. 556, 251 P.2d 935; Swanson v. Martin, 120 Colo. 361, 209 P.2d 917; House v. Smith, 117 Colo. 305, 187 P.2d 587.
We hold that under the facts in this case, where plaintiff had a decided personal interest in the result of the lawsuit, the credibility of her testimony regarding the proximate cause of the treatment she received at the hospital following the incident in question was a matter for the trier of fact, and his determination will not be disturbed by this Court.
Judgment is affirmed.
COYTE and DUFFORD, JJ., concur.