Adair v. Williams

• Decision Date: 08 December 1922
• Docket Number: Civil 2018
• Citation: 24 Ariz. 422,210 P. 853
• Parties: CONSUELO R. ADAIR and Her Husband, TOMAS ADAIR, Appellants, v. BILL WILLIAMS and OSCAR McCLOUD, Police Officers of the City of Phoenix, Arizona; GEORGE O. BRISBOIS, Chief of Police of the City of Phoenix, Arizona, and NATIONAL SURETY COMPANY, a Corporation, Appellees
• Court: Arizona Supreme Court

210 P. 853

24 Ariz. 422

CONSUELO R. ADAIR and Her Husband, TOMAS ADAIR, Appellants, v. BILL WILLIAMS and OSCAR McCLOUD, Police Officers of the City of Phoenix, Arizona; GEORGE O. BRISBOIS, Chief of Police of the City of Phoenix, Arizona, and NATIONAL SURETY COMPANY, a Corporation, Appellees

Civil No. 2018

Supreme Court of Arizona

December 8, 1922

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman, Judge. Judgment reversed and cause remanded for new trial.

Messrs Moore & Garcia, for Appellants.

Mr. R William Kramer, Mr. Martin Le Boutiller, and Mr. J. E. Craig for Appellees.

OPINION

FLANIGAN, J.

This action was brought by the appellants, Consuelo R. Adair and her husband, Tomas Adair, against certain police officers of the city of Phoenix, appellee Brisbois as chief of police of said city, and the National Surety Company as surety upon the official bond of said Brisbois, to recover the damages alleged to have been sustained by the appellant Consuelo R Adair, as the result of her unlawful arrest and imprisonment by said officers. The complaint alleges that at the time of such arrest and imprisonment Brisbois was the chief of police of said city, and the defendants Williams, McCloud, Crowe, Sutherland and McCormick, police officers thereof; that Brisbois had given a bond, with the defendant National Surety Company as surety, to perform the duties of his office; that about 3 o'clock of the morning of November 24, 1920, while plaintiffs were sleeping together in their bedroom at their home in the city of Phoenix, the defendants Williams and McCloud entered said bedroom and displayed to plaintiffs their badges as police officers, and then and there accused plaintiffs of the public offense of "living together as husband and wife, openly and notoriously, without having been married," and of having committed said offense in the presence of said officers, and thereupon arrested plaintiffs and took them to the police station of said city, and delivered them into the custody of the defendants Crowe, Sutherland and McCormick, likewise police officers as aforesaid; that the plaintiff Consuelo R. Adair was by the five last-named police officers then and there imprisoned, and unlawfully restrained of her liberty for the period of about thirty-six hours; that about 9 o'clock of the morning of said day defendant George O. Brisbois arrived at said police station, and ratified and approved the acts of his said deputies, or policemen, in making said arrest and accusations, and continued to unlawfully imprison said plaintiff against her will and protests of innocence for said period.

Circumstances in aggravation, attending the commission of these alleged unlawful acts, are set forth in considerable detail in the complaint. It is further alleged that in arresting and imprisoning Consuelo R. Adair the policeman acted without warrant.

The answer by all the defendants was a general demurrer to the complaint with a general denial of its allegations. In addition, the defendant officers pleaded specially as follows:

"That the arrest complained of in plaintiff's complaint was made by defendants Bill Williams, and Oscar McCloud, and by one J. P. Buck, who were each then and there a police officer of the city of Phoenix, upon probable cause, in that plaintiffs at the time of said arrest were inmates of a house commonly known as a disorderly house, frequented by persons of ill repute for chastity; that plaintiffs were known to be associates of such persons, and said arrest was made by said officers in the course of their duty to enforce the ordinances of the city of Phoenix against prostitution; that at the time of said arrest and imprisonment said defendants had reason to believe, and did believe, that said plaintiffs were violating said ordinances, and in making said arrest said defendants acted in good faith and upon said belief."

To this special plea the plaintiffs demurred upon the ground that it did not state facts sufficient to constitute a defense to the action, which demurrer was overruled. The general demurrer of the defendant National Surety Company was sustained, and that of the remaining defendants overruled. The cause proceeded to trial against the defendant officers before a jury. During the course of the trial the action was dismissed as to defendants Crowe, McCormick and Sutherland, and the jury returned a verdict in favor of the remaining defendants, Brisbois, Williams and McCloud, and judgment was entered accordingly. From this judgment the plaintiffs have appealed.

The first assignment of error is that the court erred in sustaining the general demurrer of the defendant National Surety Company. The record does not show that the court entered final judgment of dismissal pursuant to such order. Under the decisions of this court in Navajo-Apache etc. Trust Co. v. Desmont, 17 Ariz. 472, 154 P. 206, and Hollingsworth v. Gazette Printing Co., 21 Ariz. 51, 185 P. 359, and our uniform practice since such decisions, no final judgment having been entered, the assignment cannot be considered.

In the argument of appellees to support the ruling of the court sustaining the demurrer interposed by the surety company the correctness of such ruling is contended for upon the ground, inter alia, that it does not allege the facts showing the arrest and subsequent imprisonment to have been unlawful other than by the statements of naked legal conclusions to that effect. It is also said that for all the complaint alleges the plaintiffs may have been arrested while violating in the presence of the officers an ordinance of the city of Phoenix, which provides that any person frequenting, loitering in, or continuing in, any place of ill fame, bawdy-house or place of prostitution, is guilty of a misdemeanor.

The complaint alleges that the plaintiffs, husband and wife, were arrested in the night-time while sleeping together in their bedroom in their home in Phoenix. We think these allegations sufficiently show the lawfulness of plaintiffs' conduct at the time of the arrest, and required the defendants to justify. We thereof, such as the absence of malice and the existence of probable cause. It is unquestionably the general rule that in an action for false imprisonment evidence of reasonable and probable cause for defendant's belief in plaintiff's guilt, or that the defendant acted under an honest belief that he was within his legal rights, and with intent only to enforce the law, is admissible in mitigation of a claim for punitive or exemplary damages. But where plaintiff seeks only compensation for his actual injury the rule is different. In such an action evidence of reasonable and probable cause for defendant's belief in plaintiff's guilt, or other worthy motive, is not admissible in mitigation of the actual damage sustained. See the following authorities: Comer v Knowles, 17 Kan. 436; Garnier v. Squires, 62...