Christ v. McDonald

• Decision Date: 24 December 1935
• Citation: 152 Or. 494,52 P.2d 655
• Parties: CHRIST v. McDONALD et al. [*]
• Court: Oregon Supreme Court

52 P.2d 655

152 Or. 494

CHRIST v. McDONALD et al. ^[*]

Supreme Court of Oregon

December 24, 1935

Department 2.

Appeal from Circuit Court, Multnomah County; Carl Hendricks, Judge.

Action by George Christ against Hugh McDonald and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

CAMPBELL C.J., dissenting.

James West, Deputy City Atty., of Portland (Frank S Grant, City Atty., of Portland, on the brief), for appellants.

H. E Collier, of Portland (Collier, Collier & Bernard, of Portland, on the brief), for respondent.

BEAN Justice.

This is an action for false arrest and imprisonment. The cause was tried to the court and jury. A verdict was rendered in favor of plaintiff for $350. Defendants appeal.

Plaintiff alleges in his complaint, as the gist of his cause of action, in substance, that on or about February 19, 1934, at 7 o'clock p. m., in the city of Portland, the defendants, as police officers of the city, wrongfully, unlawfully, and without probable cause, and in wanton disregard of their duties and the rights of plaintiff, accosted the plaintiff without cause, wantonly, maliciously, wrongfully, forcibly, and unlawfully arrested, detained, and imprisoned the plaintiff in the city of Portland without any warrant of arrest for plaintiff, and without any charges on file against the plaintiff, accusing him of any violation of any city ordinance, or the laws of the state, or of the United States, nor had plaintiff committed any crime, nor was in the commission of any crime; that plaintiff was wrongfully detained at the police station until 11:15 o'clock p. m. of said day, to his humiliation and abuse, and wrongfully and unlawfully and against his will took plaintiff's fingerprints; and that he was damaged in the sum of $5,000.

Defendants admitted that they were police officers of the city of Portland; denied that they arrested plaintiff, and alleged that on January 16, 1934, a grocery store in the city had been robbed, that a person substantially answering the description of the robber rented a room for a week at the home of C. A. Payne, shortly prior to the robbery, and disappeared about the time of the robbery, and said person had a Ford coupé answering the description of the Ford coupé occupied by plaintiff at the time alleged in his complaint; that plaintiff's Ford coupé was reported to the police department as "a suspicious vehicle" and was suspected of being the coupé used by the robber; that the police officers in the police department and the defendants believed and had reasonable cause for believing that said robbery had been committed by said plaintiff, George Christ, and that the superior officers of defendants ordered and directed defendants "to bring plaintiff to the police station for questioning" on February 19, 1934, at about 8:30; that defendants proceeded to 2417 N.W. Marshall street, where said suspicious appearing Ford coupé was reported by telephone to be parked, and found therein plaintiff and one Mrs. Agnes Jaynes; that defendants disclosed their identity and informed plaintiff of the robbery, and that he was wanted for questioning at the police station; that plaintiff denied his connection with the robbery, but readily consented to go to the police station with defendants; that plaintiff voluntarily went with defendants to the police station at or about 8:30 p. m. and voluntarily submitted to interrogations until 9:45 p. m. as to his connection with said robbery, and thereupon departed from the police station. Defendants, in their answer, further allege: "That plaintiff was not arrested and was not detained against his will, but voluntarily remained for the purpose of establishing his innocence of any connection with said robbery." The reply put in issue the affirmative allegations of the answer.

The testimony in the case tended to show that plaintiff was a resident of the city of Portland, about 39 years of age, and was employed a number of years by the Northwest Stove Works. He had made arrangements to meet one Agnes Jaynes at the corner of Twenty-Fourth and Marshall streets in the city of Portland on the evening of February 19, 1934, at 7 o'clock p. m. for the purpose of having her reduce to typewriting a certain manuscript he prepared in connection with the union to which he belonged. Agnes Jaynes was a stenographer, and had been acquainted with plaintiff for a number of years. She met him pursuant to the arrangement and had entered and was seated in the model T Ford automobile. The dash light in the car was turned on. Defendants arrived on the scene, one approaching on the right side of plaintiff's car and one on the left side of the car. Defendants announced they were officers. They were dressed in plain clothes and did not have on uniforms or caps or anything to distinguish themselves as officers. They stated they exhibited their stars which they carried in their pockets, but plaintiff claims he did not get a fair view of the star or badge for the reason that it was covered by the defendant's hand. Plaintiff tried to ascertain from defendants whether they were officers. Plaintiff was questioned as to his ownership of the car, as to who he was, where he lived, what his business was, etc. Plaintiff had in his possession a driver's license, library card, fishing and hunting licenses, union card, and registration card, to which defendants paid no attention.

Plaintiff claims that defendants were quite abusive and insulting toward both parties, and became angry because Agnes Jaynes questioned their authority, and, without any cause or provocation, arrested plaintiff. Plaintiff requested to be permitted to go to Twenty-Third and Washington streets where his brother was operating a store, so that he might further identify himself, but was refused by the officers. Defendants had Agnes Jaynes get out of plaintiff's car and they put her in the defendant's car. One of the defendants got into plaintiff's car and compelled him to drive to the police station. Defendants required plaintiff, against his will, to be searched, and they searched plaintiff's car. After they arrived at the station plaintiff's car was again searched and certain golf balls and a letter opener were taken therefrom, and plaintiff and Agnes Jaynes were taken into the station. Plaintiff was taken into a room where he was subjected to numerous indignities and was kept and detained there until after 11 o'clock p. m. While there, and against his will, they took his fingerprints, and at no time was plaintiff informed why he was there. Defendants did not have a warrant of arrest, nor did they have a search warrant, nor was plaintiff charged with the violation of any law, either federal, state, or city. Plaintiff asserts he was greatly frightened, not only as to what might befall himself, but what might be done to Agnes Jaynes; that he suffered great humiliation and mental anguish, as well as shock from fright, which placed him under the care of a physician, and at the time of the trial he had not recovered from the shock.

Defendants assign as error that the trial court erred in rejecting defendants' evidence in proof of justification for the arrest or in mitigation of damages, and limiting the defense to denial of the arrest. Defendants and their superior officer testified in full in regard to all of the circumstances of the case and the cause of the alleged arrest. The testimony strongly showed that the jury was warranted in believing that defendants subjected the plaintiff to an arrest. Defendants claim that if there was an arrest it was justified, and they testified to all the circumstances and what was done, and gave their theory of the matter.

Sergeant Dana E. Jewell, witness on behalf of defendants, testified in regard to a holdup report about a month before the arrest in question; that he had the holdup investigated and what officers were detailed to investigate and report back to him. Counsel for defendants then submitted a large number of typewritten reports of officers as to the Fabinich holdup and investigations made in regard...