City of Toledo v. Lowenberg
| Citation | 58 O.O. 272,131 N.E.2d 682,99 Ohio App. 165 |
| Parties | , 58 O.O. 272 CITY OF TOLEDO, Appellant, v. LOWENBERG, Appellee. |
| Decision Date | 21 February 1955 |
| Court | United States Court of Appeals (Ohio) |
Syllabus by the Court.
1. False arrest consists of an unlawful and total detention or restraint upon one's freedom of locomotion, imposed by force or threats.
2. Where a police officer, following a collision between two motor vehicles, issues a citation directing one who was driving one of the vehicles to appear in court on a day certain, the issuance of such citation does not amount to false arrest or wrongful detention.
3. The collision of two motor vehicles on a public street or highway is not invariably the proximate result of the violation of a criminal statute or ordinance.
Nicholas J. Walinski, Toledo, for appellant.
Arthur P. Feinberg, Toledo, for appellee.
The defendant was charded with failing to yield the right of way, in the operation of her automobile, at the intersection of Collingwood and Fernwood Avenues in the city of Toledo. Upon the trial, defendant was found guilty and judgment was entered against her accordingly.
An appeal was taken to the Common Pleas Court on questions of 'law and fact' and that court, upon consideration thereof, found 'there was error prejudicial to defendant-appellant on the face of the record and in the proceedings, finding and judgment of the Municipal Court,' and reversed the judgment and discharged defendant.
From that judgment of reversal, the city of Toledo has appealed to this court on questions of law. No assignments of error, designated as such, were filed in this court, but it appears in the brief of counsel that the errors raised by defendant in the Common Pleas Court were that the arrest of defendant was unlawful and 'error of law on the evidence.'
A procedural matter is disclosed on the record, to which we direct attention. The appeal from the judgment in the Municipal Court to the Common Pleas Court was taken on questions of law and fact. Since appeals on questions of law and fact, broadly speaking, are at present limited to chancery cases, the jurisdiction conferred on the Common Pleas Court on such appeal would be to dismiss the appeal on motion or sua sponte by the court, and, thereupon, retain the cause as an appeal on questions of law. It appears that the case was heard and submitted as an appeal on questions of law. Under these circumstances, neither party having sustained any prejudice, the procedural irregularity may be passed.
The judgment entry in the Common Pleas Court did not set forth the specific grounds upon which the judgment was reversed.
The record discloses that the motor vehicle operated by defendant collided with a taxicab at the intersection of Collingwood and Fernwood Avenues; that the taxicab was moving south on Collingwood Avenue, a main thoroughfare; that defendant was proceeding west on Fernwood Avenue, approaching Collingwood Avenue, and, after making a safety stop, proceeded into the intersection; and that a collision occurred with the taxicab, resulting in damages to both vehicles and some personal injuries to the occupants.
It further appears that a police officer arrived at the scene in a few minutes, but did not witness the collision. After some investigation and interviews, the officer gave the defendant a ticket with the notation 'failed to yield right-of-way,' and that the defendant should appear in court on a day certain. Later the some day, the officer made an affidavit charging that defendant did unlawfully operate a motor vehicle at 'Collingwood and Fernwood in the city of Toledo, and did then and there commit the following offense: * * * Failed to yield right-of-way.'
The case was called at the time designated in the citation, and continued. After several additional continuances, the case was tried and defendant found guilty.
Counsel for defendant contends that the defendant was under arrest upon receliving the citation from the officer, and that an arrest for a misdemeanor by a police officer, not committed in the officer's presence, is an unlawful detention and amounts to false arrest.
False arrest consists of an unlawful and total detention or restraint upon one's freedom of locomotion, imposed by force or threats. See,...
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