Gogue v. MacDonald

• Decision Date: 26 May 1950
• Citation: 218 P.2d 542,21 A.L.R.2d 639,35 Cal.2d 482
• Court: California Supreme Court
• Parties: , 21 A.L.R.2d 639 GOGUE v. MacDONALD. Sac. 6099.

Page 542

218 P.2d 542

35 Cal.2d 482, 21 A.L.R.2d 639

GOGUE v. MacDONALD.

Sac. 6099.

Supreme Court of California, in Bank.

May 26, 1950.

Harry W. Falk, Eureka, for appellant.

Hill & Hill and W. G. Watson, Jr., Eureka, for respondent.

SHENK, Presiding Justice.

This is an appeal from a judgment dismissing the action after a general demurrer to the complaint had been sustained and the plaintiff refused to amend. The complaint shows the following facts:

On June 22, 1948, the defendant went before a justice of the peace at Fortuna, California, and complained that the plaintiff had removed himself and his belongings from the defendant's cottage without paying rent due in the sum of $95.00. The justice of the peace prepared a criminal complaint and issued a warrant of arrest based on an alleged violation of section 537 of the Penal Code. The plaintiff was arrested by the sheriff. He was unable to furnish bail and was detained in the county jail. He was subsequently released on his own recognizance. Thereafter the charge was dismissed. Since section 537 refers to removal of belongings without payment of rent for certain furnished accommodations, the facts alleged in the complaint did not constitute the designated or any penal offense.

The plaintiff sought damages for alleged wrongful arrest and detention. The question is whether the court correctly concluded that the complaint herein did not state a cause of action. There is no allegation of bad faith, such as wilful falsity or malice, in the defendant's statement of the facts to the justice of the peace. The truth of the facts so stated and the absence of bad faith in stating them must therefore be assumed.

The Penal Code, section 236, defines false imprisonment as the unlawful violation of the personal liberty of another. Unlawful interference with the personal liberty of another affords a civil right of action for the recovery of damages. Malicious prosecution is the pursuit of another by means of criminal proceedings under lawful process, but with malice and without probable cause. Civil liability may result but recovery is justified only upon allegation and proof of both essential elements, namely, malice and want of probable cause. Whether a person is liable in damages when he merely has appeared before the appropriate public official and in good faith stated the facts upon which a warrant of arrest for a criminal offense was mistakenly issued, does not seem to have been resolved by the decisions in this state.

In the early case of Hahn v. Schmidt, 64 Cal. 284, 30 P. 818, an action for malicious prosecution, the court with citation of cases adopted the English rule that in the absence of bad faith one who merely originates a suit by stating his case to a public officer, and the case stated does not amount to a criminal offense, is not liable.

In Krause v. Spiegel, 94 Cal. 370, 29 P. 707, 15 L.R.A. 707, 28 Am.St.Rep. 137, the complaint alleged falsity and malice in a prosecution by the defendant who had caused the plaintiff's arrest and imprisonment on a charge of slander. The court refused to apply the rule stated in Hahn v. Schmidt as a basis for malicious prosecution where the charge did not specify a crime slander not being a punishable offense. In considering on demurrer the bar of the statute of limitations, it was held that a cause of action for malicious prosecution was not alleged, and that the statute barred the cause for false imprisonment which was stated to be the basis for recovery had the action been brought in time. Cf. Dusy v. Helm, 59 Cal. 188; Fkumoto v. Marsh, 130 Cal. 66, 62 P. 303, 509, 80 Am.St.Rep. 73; Nelson v. Kellogg, 162 Cal. 621, 123 P. 115, Ann.Cas.1913D, 759; Neves v. Costa, 5 Cal.App. 111, 89 P. 860, stating the rule of liability applicable in cases of civil arrest; also People v. Agnew, 16 Cal.2d 655, 107 P.2d 601, involving citizen's arrest.

In Miller v. Fano, 134 Cal. 103, 66 P. 183, it was held that giving facts of identity in good faith to the officer arresting an innocent person did not create liability in an action for false imprisonment.

The court in Harrington v. Tibbet, 143 Cal. 78, 76 P. 816, followed the distinction recognized in Hahn v. Schmidt between one who in good faith states the facts to the magistrate and one who, as there alleged, maliciously made false statements to him. It was said that the failure of the stated facts to constitute a public offense should not relieve a defendant acting in bad faith from liability in a malicious prosecution action. The Harrington decision was cited in Cochran v. Bones, 1 Cal.App 729, 82 P. 970, a malicious prosecution case, where it was held that the defendant could not claim the protection of an otherwise truthful statement when he concealed facts which, had they been disclosed, would have shown that no crime had been committed. See also Donati v. Righetti, 9 Cal.App. 45, 48, 97 P. 1128.

There is language in Stubbs v. Abercrombie, 42 Cal.App. 170, 183 P. 458, to the effect that if the facts stated to the district attorney in good faith and without malice did not constitute a public offense there would be no liability on the part of the complainant.

Howe v. Owsley, 123 Cal.App. 550, 11 P.2d 663, involved the arrest of the plaintiff by legal process on a charge of violation of section 537 of the Penal Code. Similar facts defrauding the defendant of $15.00 rental of an unfurnished house were stated to a justice of the peace in Humboldt county and were insufficient to constitute the offense charged. A new trial was granted after judgment on a verdict of $8,000 awarded on the theory of malicious prosecution. Noting the distinction in Hahn v. Schmidt and Harrington v. Tibbet, it was held that malicious prosecution did not lie in the absence of malice. The court quoted an excerpt from Ross v. Hixon, 46 Kan. 550, 26 P. 955, 12 L.R.A. 760, 26 Am.St.Rep. 129, said to be supported by numerous authorities, to the effect that no action could be maintained against a person who did no more than correctly relate the facts which the magistrate erroneously regarded as constituting a public offense. The court affirmed the order granting a new trial but, referring to the dictum in Krause v. Spiegel, refrained from expressing an opinion as to whether the complaint could be amended to allege false imprisonment.

The foregoing review of decisions in this state indicates that in the present case there can be no recovery for malicious prosecution in the absence of allegation and proof of malice in making the insufficient criminal charge. Cases in other jurisdictions support the rule of recovery in malicious prosecution when that element is present. George v. Williams, 26 Ariz. 91, 222 P. 410; Bell v. Keepers, 37 Kan. 64, 14 P. 542; Barker v. Stetson, 7 Gray 53, 73 Mass. 53, ...