Opinion
Argued April 2, 1929
Modified April 30, 1929
From Multnomah: JACOB KANZLER, Judge.
For appellant there was a brief and oral arguments by Mr. Frank S. Grant, City Attorney, and Mr. R.A. Imlay, Deputy City Attorney.
For respondent there was a brief over the names of Mr. W.O. Sims and Mr. Emerson U. Sims, with an oral argument by Mr. W.O. Sims.
This is an action for assault and battery, and false imprisonment. Defendant appeals from judgment for plaintiff. The first count in the complaint is as follows:
"That at Portland, Oregon, on or about the 16th day of June, 1927, the defendant, at the police station in the city of Portland, Oregon wantonly, wilfully, maliciously and unlawfully assaulted the plaintiff by violently seizing the plaintiff and gripping his right arm and jerking and throwing the plaintiff about the lobby of the said police station in the presence of the friends and acquaintances of the plaintiff. That the defendant laid such violent vice-like grip upon the right arm of the plaintiff that he left his arm scarred and bruised for several days thereafter, thus creating great pain and suffering, both mentally and physically, and causing a great shock to the nervous system of plaintiff."
There is a second count to the effect that upon the same date the defendant "wickedly, wantonly, maliciously, wrongfully, forcibly and unlawfully imprisoned plaintiff in the city jail of the city of Portland, Oregon, at Second and Oak Streets. That at the time of the said false imprisonment the defendant was not armed with any warrant of arrest for plaintiff nor were any charges of any kind or character then on file in any court of the city of Portland or any other court, against the plaintiff accusing plaintiff of the violation of any ordinance of the city of Portland nor any law of the state of Oregon or of the United States."
In other respects, the count is word for word the same as the first count. There is a general prayer for relief wherein the plaintiff asks $10,000 general damages upon the first cause of action, the sum of $5,000 punitive damages, and a like sum upon the second cause of action.
The defendant answered, admitting that he was a member of the police force, and denying every allegation in paragraph one of the complaint, also denying the second and third paragraphs, and admitting that plaintiff was reared and educated in the City of Portland, comes of a good family long established in business, had himself been established in business for many years, is an attorney at law admitted to practice in all the courts of the State of Oregon, and has always heretofore enjoyed a good reputation and the respect of his friends in the City of Portland, and denying the allegations as to the injury and damage and humiliation of the plaintiff.
By way of a separate answer, the defendant alleges that he was a duly appointed, qualified and acting police officer of the City of Portland, and at all the times mentioned in plaintiff's complaint was assigned to duty at police headquarters at Second and Oak Streets in said city.
The answer then continues as follows:
"That at all the times herein mentioned there was in full force and effect ordinance No. 32923 of the city of Portland entitled `An Ordinance on the use of streets, and declaring an emergency,' passed by the council June 6, 1917, and approved by the mayor on the same day, and ordinance No. 50418 amendatory thereof entitled, `An Ordinance amending paragraphs (b), (d) and (e), section 2, article I, Ordinance No. 32923, relating to traffic, adding thereto a new paragraph to be designated as paragraph (q), and amending section 9, Article I, of said ordinance No. 32923, and declaring an emergency,' passed by the council September 22, 1926, and approved by the mayor on the same day. That said ordinances provide regulations governing the use of the streets of the city of Portland by automobiles and other vehicles, and more especially the time, place and manner of parking such vehicles on said streets, and provide a penalty for the violation thereof.
"That the duties of the defendant were and are in connection with the enforcement of said ordinance No. 32923 as amended by ordinance No. 50418 and particularly with reference to violations of the parking regulations contained therein. That such provisions are enforced by the Bureau of Police by placing a traffic tag or notice in the automobile of the offender in lieu of actual arrest, which tag requires the offender to report to the traffic window at the police station. That at the time mentioned in the complaint defendant was detailed to duty at such traffic window with orders from his superior officers and instructions from the municipal court of the city of Portland to demand, receive and receipt for bail from such persons. That it was, and is further the duty of the defendant to check up on persons failing to report as required by said traffic tags and to require appearance by further notice or by arrest as the case may require.
"That on or about the 13th day of May, 1927, a traffic tag was placed in plaintiff's automobile notifying the plaintiff to appear at the traffic window of the police station for parking his said automobile in a loading zone. That plaintiff ignored and failed to respond to said traffic tag and that subsequently in due course the defendant notified the plaintiff by mail to appear at the police station for such violation. That on the 16th day of June, 1927, in response to said mailed notice plaintiff appeared at the traffic window of the police station, the defendant at that time being on duty, and was advised by the defendant of the charge against him and courteously requested to post bail of $2.00 fixed by the municipal court of the city of Portland for such offense. That plaintiff wholly refused to comply with defendant's request so made pursuant to his duties and the instructions of the municipal court and turned away from said traffic window. That defendant thereupon requested the plaintiff to accompany the defendant to the office of the captain in command of the police station and that plaintiff again refused to comply. That the defendant thereupon pursuant to his orders and duties, took the plaintiff by the left arm and led him into the captain's office upon the opposite side of the corridor of the police station.
"That the defendant at all times acted in good faith and without malice toward the plaintiff and in accordance with orders issued to him. That the defendant believed at all times that he was acting within his authority. That the defendant did not at any time use unreasonable force nor did he at any time use sufficient force to injure the plaintiff nor did he subject the plaintiff to disgrace or humiliation and that the plaintiff was and is not damaged on account of the foregoing actions of the defendant in any amount or sum whatsoever."
There was a like answer to the second cause of action, and the new matter in the complaint having been put at issue, there was a trial to a jury wherein plaintiff testified in substance as follows:
"* * and I went over there and took my tag which told me to report to the traffic window, and I asked the man, that was Mr. Cordes, to please tell me what this was about, and he went back to his files and pulled out a card and showed it to me, for overtime parking, or parking in a loading zone, and that particular card, the original of that particular card, that I recognized from the date on it, had written across the face of it, `Hold for court. Do not fix,' and I was taking that original card down to the police station and I ran into an inspector that I know, and I said, `What do you do with a card like this?' He said, `Give it to me and I will take care of it for you,' and I thanked him and didn't go on to the police station. That was some weeks before the day, to make the matter clear. So I told Mr. Cordes I understood that matter was taken care of, and he said, `That is you, you are always taking care of things; you haven't paid a penny this year.' I said, `Do you hold that against me?' He said, `Yes.' I said, `Have you got anything else against me?' He said, `No.' He said, `Say, do you want to give me two dollars?' I didn't quite understand about wanting to give him two dollars, I said, `No, I don't want to give you two dollars.' He said, `Say, do you want to go upstairs?' I said, `No, I don't want to go upstairs at all.' I turned around to this man that had been to lunch with me. When I turned away from his desk I was facing, like facing this jury box. Here would be the counter, and Mr. Cordes would be behind the desk, the same ratio; you come into the police lobby like that door there (indicating). I turned to this man and I said, `I wonder what I should do about this thing,' and the first thing I knew, before I could get an answer out of this party with me, some fellow had me by the right arm, caught hold of me here (indicating), and was pulling me all over the police station as fast as he could. I said, `Say, I don't think you have to treat me this way,' and he dragged me through an alleyway —
"Q. (Interrupting.) Who was this fellow?
"A. It was Mr. Cordes.
"Q. All right.
"A. And he dragged me into a place, Sergeant Bunn was there and Lieutenant Epps, and both Sergeant Bunn and Lieutenant Epps were very busy preparing for this parade that was going to be later on that afternoon, and he dragged me into this place very forcibly. I was quite perturbed and excited about being dragged in, I didn't want to talk to anybody because I was afraid I would say something that would give them an excuse to continue the kind of treatment I had received so far, so I asked the sergeant if he would please excuse me, I wanted to go out in the lobby and pick up this party that had heard everything that went on, our conversation, and bring him in and tell him what took place. So he excused me, let me loose, and I walked out to the main lobby of the police station, found this man and brought him back in to where Sergeant Bunn was, and Mr. Cordes said, `Say, do you want to give me five dollars?' I said, `No, I don't want to give you five dollars,' so he grabs me and pulls me out where the patrol wagon comes in, puts me in that jail elevator and held onto me all the way going up in the elevator, and booked me in the police station there.
"Q. Where did this elevator go to?
"A. It went up to the jail.
"Q. Where is the jail?
"A. Up to the top floor of the police station, down at Second and Oak. Pretty soon Lieutenant Epps came upstairs — I think it is Lieutenant Epps: it is a good looking dark complexioned fellow. He said, `Say you people shouldn't quarrel.' By that time I was crying. I said, `I am not picking any quarrel.' I said, `You go down and tell Cordes, if he will set the bail at two dollars, like the original tag, I will get the bail.' He said, `No, I don't want to do that,' and he took me in and left me in jail. Then this man that saw me get manhandled down in the police station, he came up and bailed me out. Then I went up to Mayor Baker's office I came downstairs and I told this man back here (indicating) that took the bail, I said, `If you want to have this bail reduced to the two dollars you originally asked for, I will forget this matter and this kind of treatment I have been getting.' He said, `Plank down your money,' so I planked down the money like he told me to."
At the conclusion of plaintiff's testimony the defendant moved to compel plaintiff to elect upon which cause of action he would proceed, whether upon the first count or the second count, and this motion having been overruled, a verdict was returned for $400 damages upon the count for assault and battery, and $100 damages upon the count for false imprisonment. There was a judgment against defendant for $500 and costs, from which he appeals.
MODIFIED.
One of the principal errors alleged was the refusal of the court to require the plaintiff to elect upon which cause of action he would proceed, and presents a rather novel question to this court never passed upon as here presented.
The contention of the defendant is, that, under the testimony of plaintiff, the transaction was one complete transaction from the alleged seizure of the plaintiff, taking him before another officer of higher rank, and the final act of imprisoning him in the police jail; and the assault, if any was committed, was simply an element in a single transaction, which finally resulted in the wrongful imprisonment of plaintiff; that plaintiff has split his cause of action, which was entire, from the first alleged assault to the last alleged imprisonment, into two causes, and should have been compelled to elect upon which he should proceed.
The authorities are clear, that if a party divides his cause of action and brings an action upon one part of the transaction so divided, and recovers upon that portion, he will not be allowed to recover in a subsequent action upon that portion of the cause of action discarded in his first suit. Most of the authorities cited by defendant relate to cases of that character. Defendant's principal case cited is Harvey v. Southern Pacific Co., 46 Or. 505 ( 80 P. 1061). In that case the plaintiff united in one cause of action, without any separation, a claim at common law against the defendant for negligently running over and killing a cow, and also a claim under the statute against the defendant for failing to fence its track, as required by law, whereby the cow wandered on the track and was killed by defendant's locomotive. In the common-law cause of action, he would have been entitled to the value of the cow and the costs of the action. Under the statutory cause of action, he would have been entitled to the value of the cow, a reasonable attorney's fee, and costs and disbursements. The Circuit Court very properly required him to elect which cause of action he wished to proceed upon, but it will be noticed in that case the statutory remedy and the common-law remedy were inconsistent and serious difficulty would have arisen in the matter of verdict and judgment, if a general verdict should be rendered, and the action of the court in requiring the plaintiff to elect was upheld by Judge WOLVERTON, but a statement in these words was made:
"The practice, however, of allowing or disallowing a motion of the kind, is a matter largely within the sound discretion of the trial court: Manders v. Craft, 3 Colo. App. 236 ( 32 P. 836); Carlton v. Pierce, 1 Allen (Mass.), 26; Hawley v. Wilkinson, 18 Minn. 525 (Gil. 468); Plummer v. Mold, 22 Minn. 15; Wagner v. Nagel, 33 Minn. 348 ( 23 N.W. 308); Kerr v. Hays, 35 N.Y. 331."
It is clear in that case that the remedies on the two causes of action were so inconsistent that great confusion would have resulted in a trial. The authorities, while holding that the intermingling of two causes of action, or stating a single cause of action in different terms, is often objectionable, make an exception. We find the rule fairly stated in Phillips on Code Pleading as follows:
"§ 206. * * The needless multiplication of counts in common-law pleading had grown to be burdensome, and the Reformed Procedure undertook to correct this abuse, by requiring only the operative facts to be stated, as they actually occurred, and without unnecessary repetition. Under this new procedure, each separate statement is intended to set forth a distinct and independent right of action; and the rule is, that a plaintiff having but one right of action is not permitted to set it forth in two or more different forms.
"207. Duplicate Statement, continued. — The rule just stated is not an inflexible rule, and is sometimes made to yield to the demands of justice; for it is a distinguishing merit of the Reformed Procedure, that it makes formal requirements subservient to the rights of parties and the ends of justice. The reformed system is a substitute for both common-law pleading and equity pleading; it has not taken away any right; it has effected only the manner of stating a right. A plaintiff may, in a complaint under the code state any right of action, with demand of appropriate relief, that he might formally state in a declaration at law, or in a bill in chancery. If a plaintiff has two distinct grounds for a single recovery, he may now, as before, make both grounds available in one action; and so, if he has but a single right of action, resting upon one or the other of two grounds, and can not foreknow which ground may be established by the evidence, he ought to be allowed, now as formerly, so to frame his complaint as to adapt it to the possible state of the proof, if this can be done without embarrassment to the defendant.
"In many of the more recent cases, this view has obtained, as being at once the more rational, more conducive to the ends of justice, and consistent with the spirit and purpose of the Reformed Procedure; and it may safely be said that the true rule, resting upon principle, and supported by the weight of authority, now is, that where a plaintiff has a single right of recovery, that may rest upon one ground or upon another, according to the facts to be shown by the evidence, and he can not safely foretell the precise nature and limits of the defendant's liability, to be developed upon the trial he may state his right of action variously, in separate causes of action."
In the case at bar the question, as to whether there was one cause of action for the first assault and another separate cause of action for the false imprisonment, was very close to the line. According to plaintiff's testimony, he was first seized in the main room and generally pulled and hauled about, shaken up, and his arm bruised, and was then taken before the superior officer when he excused himself and went out to see a man who had witnessed the transaction between himself and the defendant and who returned with him to the room in which Cordes had taken him. After the plaintiff had made some attempted explanation, Cordes was directed to take him up to the jail, which he did. Whether the two were separate encounters each of which constitutes a cause of action, or whether they were only parts of one continued encounter, beginning at the desk of the defendant and ending in the jail, was a matter upon which counsel might reasonably have a doubt, and, as a matter of prudence, counsel for plaintiff chose to allege them as separate causes of action. If they were such, they were such as the statutes allowed to be joined, and, if they were two parts of a continuing transaction, the jury had it all before them and no harm was done from the fact that the case was presented by piece-meal pleadings. If plaintiff had sued for the false imprisonment, including in the complaint allegations of the battery which led to the imprisonment, it is altogether probable that the court would have treated it as one transaction. The fact that he made two transactions of it in one complaint did not work an injustice to anybody. It being a matter within the discretion of the court, as shown by the authorities, we cannot say that the court abused its discretion in refusing to require plaintiff to elect, while an injustice would have been done plaintiff in denying either his right of recovery as to the assault and battery, or as to the alleged false imprisonment.
There is no question but that the treatment plaintiff received was unlawful as we gather it from the testimony. There is either a custom or practice which may be prescribed by ordinance, which runs in this wise: If a driver of an automobile parks it at a place where parking is prohibited, and the traffic officer finds it so parked and the owner of the car absent, instead of waiting until the owner returns to be arrested and taken to the police court, he puts a tag in the car notifying the owner to appear at the police court, keeping a duplicate of the tag to be retained at police headquarters. If the owner of the car answers the summons contained in the tag and appears, it is customary for him to pay $2 as bail, which is usually forfeited and the matter dropped. If he does not appear, he is notified in writing and upon his failure then to appear, a complaint is filed and he is arrested. While this procedure is not strictly inside of the law, it is a matter of convenience both as to the car owner and the police officer. It saves the officer the task of waiting around the parked car for the owner to appear, and thereby allows him to attend to other duties; and it saves the owner the humiliation of being arrested on the streets and taken as a prisoner to the police court. While the custom has been followed universally, it has probably misled an officer into the belief that the tag authorizes him to arrest the delinquent without a warrant, which idea is erroneous. The officer has a right to arrest the party for a violation of a city ordinance when it is committed in his presence. Unless he has in his hands a warrant for such arrest, the seizure and imprisonment of the plaintiff for an offense not committed in his presence would be, in the absence of such warrant, wholly unlawful. No matter what the officer may have believed his rights to be, nor how good his intentions may have been, he had not such right until a warrant had been issued, unless the offense was committed in his presence.
We do not understand that the attorney for the defendant questions this view of the law, as the plea of the officer amounts only to a plea in mitigation of damages. While there was little or no evidence that the officer had any actual malice against the plaintiff, the jury were entitled, under the circumstances, to find that there was some actual damage. The plaintiff so testified, and the jury had a right to believe his testimony, and in that respect we find no reason to question the instructions of the court on its refusal to instruct as requested by the defendant.
The second assignment of error is based upon the refusal of the court to give the following instruction:
"Burden of proof in this case is upon the plaintiff to prove his allegations of damage by a preponderance of the evidence. You are not to presume that damages other than nominal damages resulted from the act of the defendant."
In view of the evidence of plaintiff that his arm was bruised until it was black and blue, this instruction would have been misleading to the jury and might have led them to believe that the court intended to instruct them that only nominal damages could have been inferred from the evidence.
Another assignment of error is based upon the following instruction given by the court:
"Under the law governing such cases there are two classes of damages one being known as general damages, and the other as punitive or exemplary damages. The term `general damages' includes what we commonly speak of as actual damages. If the plaintiff was actually physically hurt by the assault and battery, such would constitute actual damages, and the law presumes actual damages, or injury to one's reputation, peace of mind, and nervous condition from false imprisonment. Starting with actual damages as the basis for your consideration, you are authorized to add to such actual damages as you may think the plaintiff entitled to recover, such sum as exemplary or punitive damages as you may deem proper as a penalty or punishment to the defendant for such wrongful act."
We take it that except in exceptional cases that injury to the feelings of a person or mental pain and anguish may be included in general damages, and to that extent the instruction properly stated the law.
In Hays v. Houston G.N.R.R. Co., 46 Tex. 272, 279, we find the following:
"The jury are told to estimate the actual damages by the `injuries sustained by the plaintiff in his person, his estate, and his feelings,' and are told that they may look to the plaintiff's situation in life, his reputation in the community, and any circumstances which may appear from the proof to have attended the (acts) complained of,' but not take into account `the wealth of the defendant or the poverty of the plaintiff.' We think that the subject of the amount of actual damages was fairly placed before the jury." Phillips v. Hoyle, 4 Gray (Mass.), 568, and in Hearne v. De Young, 132 Cal. 357, 360 ( 64 P. 576, 577) it is said:
"The remaining branch of actual damages embraces recovery for loss of reputation, shame, mortification, injury to feelings, etc., and while special damages must be alleged and proven, general damages for outrage to feelings and loss of reputation need not be alleged in detail, and may be recovered in the absence of actual proof, and to the amount that the jury estimates will fairly compensate plaintiff for the injury done."
It was error to instruct the jury that injury to plaintiff's reputation could be presumed from the fact of his unlawful imprisonment. In an industrious search of the authorities we have found no case that so holds. On the contrary, we find many authorities that hold that loss of reputation is a fact to be proved the same as any other fact in order to justify an award of damages on that account, and counsel for plaintiff in their carefully prepared brief in this case have cited no case holding to the contrary. The judge who tried this case probably inserted the word "reputation" by inadvertence, but that fact could make no difference as to its effect upon the minds of the jury. We can only repeat what was said in respect to a similar instruction given in the case of Totten v. Totten, 172 Mich. 579 ( 138 N.W. 262), as follows:
"The court, in his reasons for refusing a new trial, and counsel for plaintiff in their brief, admit, in effect, that there is no positive evidence of injury to good name and that the instruction upon that subject was erroneous, but state that it was an inadvertent and harmless error in view of the rest of the charge and the fact that able counsel at defendant's table, listening to the charge, apparently did not notice it, and did not call the court's attention to the matter. It was clearly stated as an element of damages, and the first element mentioned in addition to physical suffering. The statement is nowhere contradicted or corrected in the charge and stands as a part of it. In view of the verdict, we cannot say that the jury did not take their cue from the instruction, and that it did not enter into and constitute a portion of their award."
In the respect above noted, the charge was erroneous. There was very slight, if any evidence, that plaintiff had suffered a loss of reputation by reason of his ten minutes detention in jail; the fact that he was "guyed" by some of his friends in regard to it, being about the substance of it. But, even had it been stronger, it was error to add to it the weight of an erroneously supposed presumption of law. We find no error in the other instruction excepted to. Under all the circumstances, we feel that this is a case which, in spite of the single error above recited, should not be sent back for a new trial, but should be finally settled here. Our authority to do this is found in Section 3c of Article VII of the Constitution, which, in part, is as follows:
"If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial; or if, in any respect, the judgment appealed from should be changed, and the supreme court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the supreme court."
Here we have a case where the real defense is only in mitigation of damages. That the defendant seized plaintiff and imprisoned him for a brief period is clear and not in fact denied; that he inflicted some, though perhaps not serious injury to his person, we think is shown by the testimony. It is clearly a case of unlawful imprisonment effected by the use of physical force. That such conduct had the effect to humiliate plaintiff, and cause him to endure mental anguish in addition to slight physical injury, naturally follows. The arrest was unlawful, under the circumstances, and wholly without justification, but the plaintiff lost nothing of his acknowledged good reputation. His chief injury was to his feelings, and we think a judgment in his favor for the sum of $300 and costs will amply cover his damages, mental and physical, and perhaps serve as a warning to public officers hereafter to be careful not to become themselves wrongdoers.
It is ordered, therefore, that the judgment of the lower court be set aside and that this cause be remanded to the Circuit Court with directions to enter a judgment against defendant for $300 damages, and for the costs of the action in both courts, the costs on appeal to be taxed here.
MODIFIED.
COSHOW, C.J., and RAND and ROSSMAN, JJ., concur.