Frazier v. Moffatt

• Decision Date: 27 December 1951
• Citation: 239 P.2d 123,108 Cal.App.2d 379
• Parties: FRAZIER v. MOFFATT. Civ. 18375.
• Court: California Court of Appeals Court of Appeals

Page 123

239 P.2d 123

108 Cal.App.2d 379

FRAZIER v. MOFFATT.

Civ. 18375.

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

Dec. 27, 1951.

Rehearing Denied Jan. 22, 1952.

Hearing Denied Feb. 21, 1952.

Morris Lavine, Los Angeles, for appellant.

Harry R. Simon, Huntington Park, for respondent.

WHITE, Presiding Justice.

This is an appeal by defendant from a judgment for $3,150 compensatory damages and $1,000 punitive damages in an action for false arrest and false imprisonment. The cause was tried before the court without a jury.

Consideration of the ground for reversal urged upon this appeal requires that attention be given to the evidence adduced at the trial. In that regard the record reflects that during the noon hour of May 16, 1949, at approximately 1 o'clock, defendant went to a cafe in Huntington Park, County of Los Angeles, as did plaintiff. In addition to the plaintiff there were present in the cafe Pearl Jacobsen, Fay Hudgins, Charles Bell, and a Mrs. Burt.

It is conceded that the defendant at all times here pertinent, was the duly elected, qualified and acting Justice of the Peace of San Antonio Township in Los Angeles County, and that the above mentioned cafe was located within said township.

As to what occurred in the cafe, the evidence is in rather sharp conflict. However, to us, the following appears to be a fair epitome thereof.

The plaintiff testified, 'Well, we were in there and we were just laughing and having a real good time, and somebody got up and said, 'Shut your mouths.' We shut up and Mr. Moffatt came around and said to me, 'I guess you don't knew who I am.' I said no. He said, 'I am Judge Moffatt.' I said 'That don't spell anything to me,' and he said, 'It will when I call the law because I am going to have you arrested,' and then he called the law.'

Fay Hudgins, a witness for plaintiff, testified, 'We were talking and laughing a little and then Pop (Frazier, the plaintiff) tickled Mrs. Burt under the chin and we all laughed a little bit louder, so when we were all laughing Judge Moffatt raised up in the booth and he said, 'Shut up, I am Judge Moffatt an dI want it quiet in here,' * * *'.

Another witness for plaintiff, Pearl Jacobsen, testified that there was 'quite a lot of conversation going on'; that except for Judge Moffatt, all were laughing, that plaintiff 'laughed, just a hearty laugh'; that when defendant was 'pretty near through with his lunch and we were all sitting there talking and laughing, he got up and he said, 'Shut up, you are making a lot of noise,' he said to John' (plaintiff).

Charles Bell, a witness for plaintiff, testified that 'Right after John (plaintiff) got down off his stool and walked over to Mrs. Burt and tickled her under the chin and laughed with her and everybody started laughing, I heard Judge Moffatt jump up and holler, 'Shut up, you disturb my lunch.'' That defendant Judge Moffatt said to plaintiff, 'Well, you are disturbing my peace and I am going to have you arrested.'

Hamilton E. Robinson, another witness for plaintiff, testified that he had formerly employed the latter who, on occasions, 'was given to making loud noises', that 'He could laugh out loud you bet'; that plaintiff's laughter 'is usually a loud laughter but not extreme.'

Defendant Judge Moffatt testified that while eating his lunch his attention was attracted to plaintiff when the latter 'let out a warwhoop or a yell like a coyote or jackass or something like that, that almost split my eardrums.' That he (Judge Moffatt) did nothing at that time but, 'looked at him (plaintiff) to see whether he was crazy or drunk or something of that kind, and then he began a lot of very loud guffaw laughter'; that 'the next thing that I heard or the next thing that happened was, as far as I am conscious, I heard another one of these horrible war whoops or screams, I don't know what you would call it,--I never heard a noise like that in my life before, it was terribly loud, it was right at my left, about 12 feet away, and I involuntarily jumped out of the booth, just from the force of the impact of the scream * * * I jumped up and turned toward him in this aisle going down in the direction of F-2, as marked on this map, and when I got half way down there, within probably seven or eight feet of him, I said, 'My God, man, what are you trying to do here?''

Defendant then went to the telephone, called the police and upon their arrival directed them to arrest plaintiff for a violation of section 415 of the Penal Code (disturbing the peace), saying to the officers, 'I want him arrested and I will file a complaint in your court.'

In obedience to the order of defendant Judge Moffatt, the officers took plaintiff into custody and transported him to the City Hall where he was imprisoned in jail for some two hours, when he was released on order of the chief of police of Huntington Park.

Following the filing of a complaint by defendant Judge Moffatt charging plaintiff as aforesaid, a trial was had resulting in the acquittal of plaintiff. Several business men and public officials, including the chief of police of Huntington Park and a deputy in the sheriff's department at said city, all testified they had known plaintiff for some considerable number of years and that his reputation in Huntington Park for 'truth, honesty, integrity, and peacefulness was good'.

With regard to damages, plaintiff testified he had never before been arrested, that his arrest was extensively publicized in newspapers. That the arrest and consequent publicity 'affected me mentally and it affected me physically because I was not well at that time; I had just gotten over a heart attack and there were many times I had to go home and rest on account of things that would come up.'

Plaintiff further testified that shortly after his arrest he suffered a recurrence of a heart condition and was compelled to consult a physician who ordered him to bed for more than a week.

It is first contended by appellant that the arrest and imprisonment of respondent were lawful and pursuant to statutory authority conferred upon a magistrate under section 838 of the Penal Code. That therefore, appellant magistrate was clothed with judicial immunity and cannot be held civilly responsible.

The section in question reads: 'Magistrates may order arrest [for offense in presence]. A magistrate may orally order a peace-officer or private person to arrest anyone committing or attempting to commit a public offense in the presence of such magistrate.'

Section 807 of the Penal Code defines a magistrate as an officer empowered to issue a warrant for the arrest of a person charged with a public offense, while section 808 of the same code, in effect at the times here pertinent, expressly provides that all the judicial officers of the state, beginning with the Justices of the Supreme Court and on down to and including judges of city courts, are magistrates. Appellant, as a justice of the peace, was therefore a magistrate.

In their capacity as magistrates, the foregoing judicial officers are required under section 410 of the Penal Code to proceed to any place of unlawful or riotous assembly of which they have notice, and there exercise the authority with which they are invested for suppressing the same and arresting the offenders. For a failure so to do such magistrate is guilty of a misdemeanor.

The case now engaging our attention presents the question as to whether a magistrate is answerable civilly for damages allegedly resulting from an act done by him pursuant to the foregoing provisions of section 838 of the Penal Code, where, as claimed herein, such magistrate acts upon insufficient evidence and with a desire maliciously to injure the party whose arrest he orders an officer to make. The question is an interesting one, and so far as we are aware has not been decided--at least, not in any case cited to us or in any case we have unearthed in our own research.

A historical approach to the problem as one of the bases upon which to rest the decision, implemented by our own Constitution and the statutes dealing with the subject matter, reveals that in the early days of the common law the lord of the manor appointed in each county in England conservators of the peace who had the power and whose duty it was to personally arrest persons who were engaged in rioting or disturbing the peace. The jurisdiction of such conservators was confined to the county in which they lived. Not only did these conservators have the duty and power to arrest offenders engaged in rioting or disturbing the peace in their presence but they were vested with the additional power of deputizing bystanders to assist them. Section 838 of the Penal Code of this state is of like import. The conservators were in no sense judicial officers. In the reign of Edward I (1308), Parliament passed an act by which the duties and powers of the conservators were lodged in the hands of those who were designated as magistrates. The early magistrates in turn possessed no judicial functions. The office of magistrate, in turn, by act of Parliament became vested in a group known as justices of the peace. Initially the justices likewise possessed no judicial power. It was not until the reign of George III that Parliament enlarged their functions, so as to invest them not only with the power to arrest and cause bystanders to assist them, but to enable them to try and convict the offenders. Their judicial duties or powers went no further. The civil jurisdiction exercised by justices of the peace, as we know it today is, relatively speaking, of a much more recent era.

When Parliament enlarged the powers of justices of the peace so as to grant to them the power to hear and convict offenders which they had personally arrested or had caused bystanders to arrest upon their oral orders at the scence of the disturbances, the justices, nevertheless, were without judicial immunity for any of...