Floro v. Lawton

• Decision Date: 23 December 1960
• Parties: Vincent J. FLORO, Plaintiff and Appellant, v. Robert P. LAWTON and George W. Rochester, Defendants and Respondents. Civ. 24726.
• Court: California Court of Appeals Court of Appeals

Page 98

10 Cal.Rptr. 98

187 Cal.App.2d 657

Vincent J. FLORO, Plaintiff and Appellant, v. Robert P. LAWTON and George W. Rochester, Defendants and Respondents.

Civ. 24726.

District Court of Appeal, Second District, Division 1, California.

Dec. 23, 1960.

Rehearing Denied Jan. 13, 1961.

Hearing Denied Feb. 15, 1961.

Lawrence J. Yanover, Los Angeles, for appellant.

Crider, tilson & Ruppe, Henry E. Kappler, Los Angeles, for respondent, Robert P. Lawton.

George W. Rochester, in pro. per.

FOURT, Justice.

This is an appeal from a 'judgment of non-suit' in favor of defendants in a malpractice action.

A resume of some of the facts is as follows:

Mr. and Mrs. Floro and Mr. and Mrs. Burke lived approximately across the street from each other in Whittier. Mrs. Burke claimed that Mr. Floro had attempted to molest her on Saturday afternoon, August 6, 1955. On the next day, Sunday, at about 7:00 p. m., the Burkes, after talking with the Floros (at which time alleged slanderous remarks allegedly were made), went to the police station and there apparently Mrs. Burke related what had occurred and she wrote out and signed a statement which set forth what had taken place in the episode of Saturday afternoon and also signed another statement which the police presented to her for signature. The latter statement was entitled 'Citizen's Statement on Arrest By Citizen.' It is a letter-size, capital-lettered, printed form with blank spaces provided therein to be filled in by the police. The latter statement set forth that a felony had been committed in the presence of Mrs. Burke, namely: '836-3220 PC (Attempted Rape) 242 PC (Battery)' and further set forth:

'And I Hereby Make A Citizen's Arrest Of (Him) (Her) For The Above Described Offense And I Hereby Direct The Whittier Police Department To Assist Me In Taking (Him) (Her) Into Custody Pursuant To My Arrest Of (Him) (Her). I Will Appear At The Whittier Municipal Court On 8-7 ----, 1955, At 9:00 A. M. And Will At That Time Sign A (Misdemeanor) (Felony) Complaint Against Vincent Floro (Name of Suspect) For The Above Described Offense.

'/S/ Mrs. Helen C. Burke

(Complainant)

'OR 95202

'Date Aug 7, 1955

'Time 7:20 P. M.'

It is noted that Mrs. Burke was caused to promise to be in the Municipal Court at 9:00 a. m. of that same day, namely Sunday, when according to the statement itself it was at the time of signing thereof 7:20 p. m. Sunday.

After Mrs. Burke signed the statements, the police, apparently in uniform, went to Floro's house at about 9:00 p. m. on Sunday, August 7, 1955 and placed Mr. Floro under arrest. Mr. Floro himself testified that the police came to his house and said, 'You are under arrest' and told him of the code sections which were involved. There is nothing in the record to the effect that the police told Mr. Floro that they were acting for Mrs. Burke or for anyone other than themselves in the course of their duty. Neither of the Burkes was present at the arrest nor was either of them at the jail and talked with or said anything to Floro with reference to any arrest or otherwise. Mrs. Burke testified that she had not asked the police to arrest Mr. Floro but that she had related to them what had occurred and that she wanted protection from him. Mr. Floro was taken to the jail by the police where he talked to his lawyer, Robert P. Lawton. Mr. Floro was released the next morning, that is, Monday, on a writ of habeas corpus. The petition for the writ recites that Vincent John Floro was being 'held on suspicion of 220 P.C. and 242 P.C.' and that no bail had been set. The judge set bail which Mr. Floro furnished, ordered him released upon the bail and set the writ for hearing on Thursday, August 11, 1955. Mrs. Burke talked with a deputy district attorney and the police on Monday morning, August 8, 1955, and it was there and then determined that a complaint would not be filed, although the prosecutor indicated that in his opinion a conviction could be secured. Mrs. Burke apparently was not desirous of prosecuting Mr. Floro but did not want him to leave her alone and wanted protection from his activities.

Mr. Floro was in the office of his attorney, Robert P. Lawton, later on Monday, August 8, 1955, and at that time executed a contract entitled 'Retainer' with Lawton. That agreement provides in part as follows:

'Retainer

'The Undersigned, hereinafter called the client, hereby Retain Robert P. Lawton Attorney-at-Law, hereinafter called the attorney to:

defend the undersigned & litigate

matter agst (sic) Mr & Mrs Bob Burke.

and agrees that the attorney is empowered to perform the said services for and on behalf of the client, and in his name, and to do all things necessary, appropriate or advisable, or which the attorney may deem necessary, appropriate or advisable, thereto whether by instituting and maintaining to completion an action or actions or other legal proceedings, or otherwise, either before or after Judgment, or Judgments.

'As compensation for the service of the attorney, the client will pay the sum of 275.00 Dollars in cash and the further sum of--Dollars payable--and in addition thereto 33 1/3 per cent of any money or property paid, received or collected, by action, compromise or otherwise, upon or in satisfaction of any claim, or recovery made, incident to, or as a result of, the said services.

* * *

* * *

'Both the attorney and client will use their best efforts in furthering the purposes of this retainer and in obtaining the necessary evidence and attendance of witnesses.'

It is noted that the agreement does not provide for the bringing of any particular type or character of action. Apparently, whatever was to be done was left largely to the discretion of Lawton.

An action, which will sometimes hereinafter be referred to as the previous action, was instituted in the Superior Court in Los Angeles County by Vincent J. Floro, hereinafter referred to as Floro, against Robert M. Burke, hereinafter referred to as Burke and Helen Burke, his wife. In Count I of that complaint, which was prepared and filed by Robert P. Lawton, hereinafter referred to as Lawton, on August 31, 1955 the plaintiff alleged that Burke had slandered him by saying to Mrs. Floro, in the presence of others, in effect that Floro had 'attempted to rape' Mrs. Burke and that as a result of such accusation Floro had been damaged. In Count II against Burke, Floro alleged that Burke had slandered him by saying substantially the same thing as alleged in Count I. In Count III which was against Burke and Mrs. Burke, Floro charged that defendants caused his arrest upon false and malicious charges of assault; that plaintiff was, at the instigation of defendants, taken into custody by police officers and forced to stay in jail overnight; that plaintiff was released on a writ of habeas corpus on a bond of $2,000; that said complaint was withdrawn and dismissed and plaintiff was discharged and further prosecution of plaintiff was abandoned; that the arrest and imprisonment were malicious to plaintiff's great damage. In Count IV against Burke and Mrs. Burke, plaintiff, by reference, adopted in most part the allegations contained in the third count and further charged that the prosecution of plaintiff was instituted maliciously and without cause and that plaintiff was damaged thereby. The plaintiff asked for $100,000 from Burke and $50,000 from Mrs. Burke.

An answer was filed by the Burkes and the case was set for trial for January 10, 1957. A short time before the trial date Lawton ascertained that he would not be able to present the evidence at the trial because of a conflict in his calendar and he talked with George W. Rochester, an attorney, about doing the trial work. In effect the two attorneys agreed to divide the fee or returns from the case half and half. The procedure and the situation was explained to Floro and he consented that Rochester should try the case. A substitution of attorneys was executed and filed showing Rochester and Lawton to be substituted for Lawton as the attorneys for Floro in the case.

In preparation for the trial Rochester and Floro talked over the facts of the case and Rochester stated that he was not at all certain about being able to prove the false arrest, but that he would try. In this connection Floro testified that he (Floro) said at that time, '* * * fine * * * I leave it up to you.' Nothing further was said about the matter until about the time of trial. At the counsel table, just before the trial commenced Rochester attempted to explain to Floro the difficulty in proving the false arrest of false imprisonment and according to Rochester, Floro said, 'You are the lawyer. I trust in you. If that is what you think, why you do as you please.' According to Floro, he (Floro) said (with reference to Rochester's statement that he was not sure he could prove false arrest, but that he would try), 'Fine. I leave it up to you.'

It is undisputed that Rochester caused to be put into evidence everything which was available by way of proof with reference to the entire matter and that no evidence which Floro wanted admitted was rejected. In other words, all of the facts with reference to the entire matter were before the judge.

Rochester was asked by the Judge, Wilbur C. Curtis (who died after the trial and before the start of the malpractice trial), if he cared to make an opening statement prior to the taking of any evidence. Rochester said:

'Mr. Rochester: I don't think there is any necessity to--the complaint states the cause of action and the facts. The two that we are pressing are the malicious prosecution and the slander. The allegation of false arrest--as your Honor knows, I came in on this case rather late. I just got substituted in on the matter. As I read it, I think that the false arrest, if any, merges with the malicious prosecution, so we will introduce testimony to suppor the two causes of action, namely, slander and malicious prosecuti...