Edgar v. Omaha Public Power Dist.

• Citation: 166 Neb. 452,89 N.W.2d 238
• Decision Date: 18 April 1958
• Docket Number: No. 34306,34306
• Parties: Roger EDGAR, Appellant-Cross-Appellee, v. OMAHA PUBLIC POWER DISTRICT, a corporation, Appellee-Cross-Appellant.
• Court: Supreme Court of Nebraska

Page 238

89 N.W.2d 238

166 Neb. 452

Roger EDGAR, Appellant-Cross-Appellee, v. OMAHA PUBLIC POWER DISTRICT, a corporation, Appellee-Cross-Appellant.

No. 34306.

Supreme Court of Nebraska.

April 18, 1958.

Syllabus by the Court

1. A motion for directed verdict or for judgment notwithstanding the verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the evidence.

2. An appeal from an order of the district court granting a motion for a judgment notwithstanding the verdict requires this court to consider the entire record and to determine whether it does or does not justify the action of the trial court.

3. Where the facts adduced to sustain an issue are such that reasonable minds can draw but one conclusion therefrom, it is the duty of the court to decide the question, as a matter of law, rather than submit it to a jury for determination.

4. As a general rule, a party calling a witness vouches for his credibility and is ordinarily bound by any evidence he gives which is not contradicted or shown to be unreliable by evidence which would justify the trier of facts in arriving at a different conclusion.

5. One who merely states to an officer what he knows of a supposed offense or gives information to an officer tending to show that a crime has been committed, without making any charge or requesting an arrest, does not thereby make himself liable for false arrest and imprisonment.

6. Accompanying an officer to identify one suspected of an offense or to identify property involved therein is no more than the giving of information in assistance of the officer, and unless accompanied by acts of affirmative direction, persuasion, or request for or voluntary participation in an arrest and imprisonment of the suspected offender by the officer, his informer is not liable for false arrest and imprisonment.

Gaines, Spittler & Moore, Omaha, for appellant.

Fraser, Crofoot, Wenstrand, Stryker & Marshall, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff, Roger Edgar, brought this action against defendant, Omaha Public Power District, seeking to recover damages for alleged false arrest and imprisonment. As far as important here, defendant's answer was a general denial. Upon trial to a jury, defendant's motions for directed verdict, made at conclusion of plaintiff's evidence and renewed at conclusion of all the evidence, were overruled. Thereupon, the jury returned a verdict in favor of plaintiff and against defendant, and judgment was rendered thereon. Defendant then filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. After a hearing, the trial court sustained defendant's motion for judgment notwithstanding the verdict, and vacated and set aside the verdict and judgment theretofore rendered. Therefrom plaintiff appealed, assigning that the trial court erred in sustaining defendant's motion and rendering judgment for defendant, which was allegedly not sustained by the evidence but was contrary thereto and contrary to law. We conclude that the assignment has no merit. In that connection, since defendant's cross-appeal relating to the alleged erroneous overruling of its motion for new trial became pertinent only if plaintiff's assignment of error was sustained, it falls of its own weight by affirmance of the judgment of the trial court, and requires no further discussion.

The only question requiring decision on the merits is whether or not the trial court erred in concluding that the evidence was insufficient to sustain a verdict and judgment in favor of plaintiff. The procedure for determination of that question has been well established.

In that connection, this court has held that: 'A motion for directed verdict or for judgment notwithstanding the verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the evidence.' Crane v. Whitcomb, 160 Neb. 527, 70 N.W.2d 496, 497.

As held in Wagoun v. Chicago, B. & Q. R. R., 155 Neb. 132, 50 N.W.2d 810: 'An appeal from an order of the district court granting a motion for a judgment notwithstanding the verdict requires this court to consider the entire record and to determine whether it does or does not justify the action of the trial court.'

As said in Fairmont Creamery Co. v. Thompson, 139 Neb. 677, 298 N.W. 551, 555: 'A mere scintilla of evidence is not enough to require the submission of an issue to the jury. The rule is well stated in Farr Co. v. Union P. R. Co., 10 Cir., 106 F.2d 437, 439, as follows: 'The rule is that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.'' See, also, Armer v. Omaha & C. B. St. Ry. Co., 153 Neb. 352, 44 N.W.2d 640.

In Kohl v. Unkel, 163 Neb. 257, 79 N.W.2d 405, 407, this court held: 'Where the facts adduced to sustain an issue are such that reasonable minds can draw but one conclusion therefrom, it is the duty of the court to decide the question, as a matter of law, rather than submit it to a jury for determination.'

Also, in Leach v. Treber, 164 Neb. 419, 82 N.W.2d 544, 545, we held: 'If, from undisputed evidence, different minds may not reasonably reach different conclusions or draw different inferences, the trial court should render judgment consistent with the facts. * * *

'As a general rule, a party calling a witness vouches for his credibility and is ordinarily bound by any evidence he gives which is not contradicted or shown to be unreliable by evidence which would justify the trier of facts in arriving at a different conclusion.' See, also, Davis v. Dennert, 162 Neb. 65, 75 N.W.2d 112.

In addition, this court and many others have established the fundamental evidentiary basis of liability for false arrest and imprisonment. For example, in Baker v. Coon, 102 Neb. 243, 166 N.W. 555, this court held: 'One who merely states to an officer what he knows of a supposed offense, without making any charge or requesting an arrest, does not thereby make himself liable for false imprisonment.'

In Jonson v. Heller, 142 Neb. 380, 6 N.W.2d 359, 360, plaintiff Jonson, who was an employee of defendant, S. N. Wolbach Sons, Inc., sought damages from said corporation and one Samuel G. Heller, in charge thereof, for false imprisonment. In that opinion, reversing a judgment in favor of plaintiff and dismissing the cause, it was said: 'A gladstone bag was stolen from the store, which fact was reported to Heller, who in turn reported it to the chief of police, and a request was made upon the chief of police that he make an investigation. Pursuant to this request the chief of police sent an officer or officers to the store. The officer or officers did not know the plaintiff so, on request, defendant Heller described him. Thereupon and after plaintiff left the store, an officer requested plaintiff to accompany him to the police station. Plaintiff did accompany him to the police station where he remained for questioning for some period of time when he was allowed to leave.

'There is no direct evidence whatever, nor is there any evidence from which a reasonable inference could be drawn, that Heller or any one on his behalf or on behalf of the defendant corporation accused plaintiff of the taking of the bag, or requested or suggested his detention, or in any wise directed, counseled or advised the chief of police or any police officer in the investigation which had been requested. On the record whatever was done in the investigation was at the sole instance of the chief of police.' As hereinafter observed, that case is comparable in all material respects with that at bar.

As stated in 22 Am.Jur., False Imprisonment, § 33, p. 376, citing supporting authorities: 'Where a person merely directs the attention of a police officer to what he supposes to be a breach of the peace and the officer, without other direction, arrests the offender on his own responsibility, the person who did nothing more than to communicate the facts to the officer is not liable for causing the arrest, even though it is made without a warrant. If the arrest is made without the knowledge and consent of such person, there is no liability.'

Also, as stated in 35 C.J.S. False Imprisonment § 24, p. 527, citing supporting authorities: 'An individual who directs or requests an illegal arrest is liable for false imprisonment, but one who merely gives information regarding an offense does not incur liability.'

In Annotation, 21 A.L.R.2d, § 23, p. 694, citing and discussing authorities, it is said: 'The mere giving of information to an officer tending to show that a crime has been committed is not enough to render the informer guilty of a resulting false imprisonment by an officer, and this is so even if the information purports to show that the person later falsely arrested is the one who committed the alleged crime.'

Also, in Annotation, 21 A.L.R.2d, § 26, p. 703, citing and discussing authorities, it is said: 'Where the investigation was of some past offense, and the defendant's part in it was that of assisting officers to discover or apprehend the offender, the defendant's liability depends on evidence that he...