Brown v. Meier & Frank Co.

• Decision Date: 10 January 1939
• Citation: 86 P.2d 79,160 Or. 608
• Parties: BROWN <I>v.</I> MEIER & FRANK CO.
• Court: Oregon Supreme Court

160 Or. 608

86 P.2d 79

BROWN

v. MEIER & FRANK CO.

Supreme Court of Oregon.

Argued November 30, 1938.

Reversed January 10, 1939.

Rehearing denied February 15, 1939.

Appeal and error

1. Where appellant's counsel pointed out respects in which he believed instructions to be confusing, whereupon court gave further instructions and asked if counsel had any exceptions and counsel replied, "Other than the one I called your attention to, that is all", question whether instructions were confusing was properly before supreme court for review, as against contention that no exception was taken.

False imprisonment

2. In action for false imprisonment, where justification for arrest was not pleaded, the sole issue under the pleadings was whether plaintiff had been falsely imprisoned, and, if so, the amount of damages sustained by her as the direct and proximate result thereof.

False imprisonment

3. In action for false imprisonment, justification must be specially pleaded and is not available under the general issue.

False imprisonment

4. In action for false imprisonment, plaintiff was required, in her case in chief, to show only a false imprisonment, whereupon unlawfulness of imprisonment was presumed until the contrary was shown.

False imprisonment

5. In action for false imprisonment, plaintiff was required neither to allege nor prove that the imprisonment was without probable cause.

False imprisonment

6. In action for false imprisonment, where plaintiff, after showing a false imprisonment, introduced evidence of being bound over to grand jury, such evidence overcame presumption that detention was unlawful, since being bound over to grand jury showed probable cause for arrest.

Evidence

7. A defendant had the right to rely on legal effect of evidence produced by plaintiff.

False imprisonment

8. A person may be arrested for a felony without a warrant where there is reasonable ground for believing that such person

has committed the offense as respects liability of arresting party for false imprisonment.

False imprisonment

9. As respects liability for false imprisonment, police officer, after arresting plaintiff, was under duty to take prisoner before a magistrate without delay unless plaintiff waived her right to have officer do so.

False imprisonment

10. As respects liability for false imprisonment, an officer cannot justify the detention of a prisoner for an unreasonable length of time without a warrant on ground that time was necessary to investigate the case and procure evidence against the prisoner.

False imprisonment

11. An arresting officer has no right to take a prisoner against prisoner's will and without prisoner's consent before some self-constituted inquisitorial body, and, if the officer does so, all who participate in such unlawful detention are liable for false imprisonment.

False imprisonment

12. In an action for false imprisonment, what constitutes an "unreasonable delay" within statute requiring arresting officer to take prisoner before a magistrate without delay is ordinarily a question for jury.

False imprisonment

13. A claim of unlawful detention or imprisonment cannot be based on arresting officer's delay in taking prisoner before a magistrate if the delay is occasioned by the prisoner.

False imprisonment

14. In action for false imprisonment, evidence was insufficient to support finding that arresting officer in the first instance was not acting in good faith in arresting plaintiff, without warrant, for theft of fur coat.

Trial

15. In action for false imprisonment, where plaintiff was arrested for stealing fur coat and was then taken to store from which coat was stolen, instruction that, although arrest might have been lawful in the first instance, it might become unlawful by failure of arresting officer to take plaintiff before a magistrate within a reasonable time, was inconsistent with instruction that arrest was lawful and inconsistency was prejudicial to defendant.

False imprisonment

16. In action for false imprisonment, where it appeared that plaintiff was lawfully arrested, without warrant, for stealing fur

coat and then taken to store from which coat was stolen, plaintiff was entitled only to damages resulting from detention at store if such detention was against plaintiff's will, and not for damages resulting from the arrest in the first instance.

Appeal and error

17. Where appellant had assigned errors concerning instructions but had taken no exceptions thereto in trial court, such assignments were not before the supreme court for review.

                  Delay in taking prisoner before magistrate or denial of
                opportunity to give bail as rendering officer liable for false
                imprisonment, note, 79 A.L.R. 13. See, also, 11 R.C.L. 798 (4
                Perm. Supp., 2998)
                  25 C.J. False imprisonment, § 145
                

Department 1.

Appeal from Circuit Court, Multnomah County.

JOHN P. WINTER, Judge.

Action to recover damages for an alleged false imprisonment by Dorothy Brown against Meier & Frank Company, a corporation. Judgment for plaintiff for $2,000, and defendant appeals.

REVERSED. REHEARING DENIED.

John C. Veatch and John F. Reilly, both of Portland (Joseph, Veatch & Bradshaw and Wilson & Reilly, all of Portland, on the brief), for appellant.

Henry S. Westbrook, of Portland (Walter E. Hempstead, Jr., of Portland, on the brief), for respondent.

BELT, J.

This is an action to recover damages for an alleged false imprisonment. From judgment in favor of the plaintiff for $2,000, the defendant appeals.

The material facts out of which this action arose are as follows: The defendant, Meier & Frank Co., is a corporation which owns and operates a large department store in the city of Portland. A fur coat valued in excess of $500 was stolen from the store on January 20, 1934. Charles Shearer, a brother of the plaintiff, was found in possession of the coat and arrested for the commission of the crime. When Shearer was tried on such charge the jury disagreed. While Shearer was in jail awaiting trial, information obtained from him led to the suspicion that the plaintiff was involved in the crime and that he was shielding his sister.

Mrs. Violet Craig, the house detective of Meier & Frank Co., and Louis Manciet, a police officer of the city of Portland, at about 3:30 in the afternoon of February 13, 1934, went to a drug store, where plaintiff was employed at the fountain and lunch counter, to interview her concerning the theft of the coat. Plaintiff says that the police officer flashed his star, took her by the arm, and told her she was under arrest. It was almost quitting time for plaintiff and she said in effect that, after she changed her clothes, to avoid embarrassment she went with Manciet and Mrs. Craig into the street to talk the matter over. Plaintiff testified in substance that she was forced against her will to get into an automobile parked near by, where she was mistreated and accused of having stolen the coat but that she at all times denied the theft. Manciet and Mrs. Craig denied having mistreated the plaintiff and assert that she willingly got into the automobile and while there, in answer to their questioning, confessed that she was guilty of stealing the coat. Manciet said it was after the confession that the arrest, without a warrant, was made. Plaintiff says that, after her arrest, she was taken without her consent and against her will to the office of the superintendent of the Meier & Frank Co. store where, for a period of two hours, she was questioned and accused of the theft of the coat. Testimony offered on behalf of the defendant was to the effect that plaintiff requested that she be taken to the store where she wanted the opportunity of "straightening the matter out," and that while in such office she again confessed to the crime for which she was arrested.

After being interviewed in the office of the superintendent, the plaintiff was taken to the police station and kept there, as she says, until 10:30 p.m., at which time she was released under bail. On the following day a hearing was had and plaintiff was bound over to await the action of the grand jury. The grand jury returned a not true bill.

The appellant's assignments of error pertain to the instructions of the court which, it is asserted, are inconsistent and contradictory. Defendant contends that, in view of the fact that plaintiff was bound over to the grand jury, there was probable cause for the arrest and that no action for false imprisonment could be based thereon. Defendant also asserts that the alleged wrongful detention of the plaintiff should be confined solely to the length of time she was detained at the store, in the event she was taken there against her will and without her consent.

Plaintiff asserts that no exception was taken to any of the instructions and hence the questions urged by appellant are not here for review. It is further contended by plaintiff that the instructions in any event were not prejudicial to defendant and that the issues were fully and fairly presented to the jury. Plaintiff also argues that, since the answer of the defendant was a general denial to the complaint, defendant is in no position to justify the arrest on the ground of probable cause for believing that she had committed the crime.

1. In our opinion, the question as to whether the instructions of the court in certain particulars were inconsistent and contradictory is properly here for review. At the conclusion of the instructions the court asked: "Now is there anything else in particular that counsel want?" whereupon counsel for defendant said:

"There is only this in connection with the instructions, Your Honor, that I think might be confusing. You have instructed the jury that the fact that the plaintiff in this case was bound over to the grand jury makes the arrest lawful. Then further in your instructions you have instructed the jury that if they found that she was unlawfully arrested, or that if she lost her...