Nelson v. Kellogg

In an action for false imprisonment plaintiff recovered judgment for five hundred dollars against Wm. Kellogg and J. T. Whaley. Kellogg alone appeals.

The arrest complained of was made .upon a warrant issued in a civil action instituted by Kellogg against the plaintiff. Among the errors complained of are the rulings of the court in giving instructions to the jury to the effect that the affidavit upon which the warrant was issued was defective because the allegations therein were made solely on information and belief, it being claimed by appellant that they were positive in form, and in instructing the jury that a check for three hundred dollars accepted by the justice in lieu of an undertaking was not a compliance with the law requiring an undertaking or a cash deposit, and that for these reasons the arrest was illegal. We do not find it necessary to consider either of these points. One of the grounds upon which it was alleged the arrest was illegal was that the plaintiff, Edith M. Nelson, is a woman. This fact was admitted by the answer. The arrest was made under the provisions of section 861 of the Code of Civil Procedure, the last clause of which section is as follows: “No female can be arrested in any action.” Consequently the arrest was illegal under any circumstances. The court might have instructed the jury to that effect, and any instructions or rulings which it made regarding its illegality in other respects are unimportant and could not have caused prejudice to the appellant, whether erroneous or not.

Plaintiff alleged as special damages that she had incurred a liability for one hundred and fifty dollars, for the services of an attorney employed by her to secure her release from the arrest. The proof was that the liability was incurred but that no payment thereof had been made. Defendant objected to the evidence on the grounds that a mere liability for services in that behalf was not an element of damage, unless the

The claim that the liability in part was for other services rendered after plaintiff’s discharge from the arrest, is not sustained by the facts. She was released on bail before the services were performed, but she was still answerable to the charge, and a few days afterwards she was surrendered by her bail. Thereupon she was finally discharged. In the mean time, the attorney had performed services in advising her concerning her discharge. The liability incurred for such services

The defendant is not exonerated from liability by the fact that, before filing his affidavit for the arrest, the magistrate who issued the warrant, being informed of the facts, advised him that there was sufficient cause for the arrest. In actions for malicious prosecution, advice of counsel, given under proper circumstances, or the decision of a magistrate holding the party to -answer upon a criminal charge, may be sufficient evidence of probable cause for the prosecution, and may therefore serve to establish a good defense. But the defense of probable cause is not applicable in actions for false imprisonment. (Neves v. Costa, 5 Cal. App. 111 , [ 89 Pac. 860 ].) In false imprisonment, the good faith of the defendant is material only on the question of punitive damages. (Ibid.) The case of Dusy v. Helm,, 59 Cal. 189 , went upon the ground that where the affidavit for arrest contains direct statements of facts which constitute some evidence of every fact which the statute requires to be shown therein, the magistrate to whom it is presented has jurisdiction to pass upon its sufficiency, and if he determines upon such evidence that it is sufficient and thereupon issues the warrant, the party who invokes his decision is not answerable to the defendant in damages if the magistrate errs in his judgment of such evidence. This principle can have no application to the arrest on civil process of- a person shown to be a female, since such arrest is not allowed on any state of facts and the magistrate can under no circumstances acquire jurisdiction to issue the warrant. (See Fkumoto v. Marsh, 130 Cal. 66 , [ 80 Am. St. Rep. 73 , 62 Pac. 303 , 509], where the case of Dusy v. Helm is thus distinguished. See, also, Ex parte Fkumoto, 120 Cal. 316 , [ 52 Pac. 726 ].)

It is claimed that the damages are excessive, but in view of the well-established rule concerning the power of this court to review the question of excessive damages, we cannot say that the court or jury abused their discretion in that regard. (Diller v. Northern C. P. Co., ante, p. 531, [ 123 Pac. 359 ];

Sloss, J., and Angellotti, J., concurred.

Hearing in Bank denied.