Lemel v. Smith

• Decision Date: 03 December 1947
• Docket Number: 3485.
• Citation: 187 P.2d 169,64 Nev. 545
• Parties: LEMEL v. SMITH et al.
• Court: Nevada Supreme Court

187 P.2d 169

64 Nev. 545

LEMEL v. SMITH et al.

No. 3485.

Supreme Court of Nevada

December 3, 1947

Appeal from Second Judicial District Court, Washoe County; A. J Maestretti, Judge.

Action for damages for false arrest and false imprisonment by Sam Lemel against Harold S. Smith and Raymond A. Smith partners doing business under the firm name and style of 'Harold's Club' and others. From a judgment for defendants and from an order denying a new trial, plaintiff appeals.

Affirmed.

Morgan, Brown & Wells, of Reno, for appellant.

M. A Diskin and George Lohse, both of Reno, for respondents.

BADT Justice.

Plaintiff Sam Lemel sued the defendants for damages for false arrest and false imprisonment, joining as such defendants Harold S and Raymond A. Smith, copartners operating a gambling casino under the name of Harold's Club, Jack Filtzer, their 'floor man' and Charles Nichols and George Stone, police officers of the City of Reno. The case was tried to the court without a jury, and the court rendered its decision dismissing the defendants with their costs and thereafter making and filing its findings of fact, conclusions of law and judgment. From this judgment and from the order denying plaintiff's motion for new trial, plaintiff has appealed. The Smiths and Filtzer on the one hand, and the two officers on the other, filed separate answers and were represented by separate counsel, and it will be seen that somewhat different issues are made as between plaintiff and these two respective groups of defendants. Plaintiff alleged in his complaint that while he was playing dice at Harold's Club at Reno, Nevada, on April 16, 1946, he had occasion to speak to Filtzer concerning the rules of the game and told Filtzer he wanted to talk to Harold S. Smith about such rules, and that while talking to Smith the two police officers, at the order and direction of Smith and Filtzer, by force and violence arrested plaintiff and incarcerated him in the city jail at Reno and detained him in a vile and loathsome place, with drunken, diseased and unclean people, all with oppression, fraud and malice and without probable or any cause and held him against his will for 18 hours during which time they failed and refused to take him before a magistrate or admit him to bail. He alleged that he suffered great mental anguish, was mortified, humiliated and shamed, suffered infectious bites and stings of body lice and other bugs from which a skin disease and eruption were communicated to him, and that he was kept from his business and lawful pursuits to his damage in the sum of $25,000. The Smiths and Filtzer answered, admitting plaintiff's presence in the Club, his playing dice and his request to talk to Harold S. Smith, but denying the remaining allegations. As a separate defense they alleged in some detail that plaintiff had been acting in a loud and boisterous manner, that he had cursed and sworn and criticized and found fault with the manner in which the dealer was carrying on the game, etc., which culminated in the dealer's request to him to leave the game; that he demanded of Filtzer that he be permitted to talk to Smith, continued to argue in a loud and boisterous manner and that Filtzer requested the police offiers 'to take plaintiff out of the premises,' which they did.

As Paragraph II of such separate defense, both groups of defendants allege on information and belief that on the following day, April 17, 1946, a criminal complaint was filed against plaintiff in the municipal court of Reno, Washoe County, Nevada, charging him with being a disorderly person in violation of a city ordinance, and that he had on said date entered a plea of guilty to said complaint. The answer of the police officers did not recite the actions of Lemel in Harold's Club but recited that they had received a call directing them to go to Harold's Club, found Lemel still in an altercation, swearing and arguing heatedly, asked him to leave the place voluntarily and that they escorted him from the place; that he then stated that he was determined to go back and settle his differences whereupon they placed him in a police car, took him to the station, 'booked' him and turned him over to the desk-sergeant 'as required under the established rules and regulations of the police department of the City of Reno.' They then, as did the other defendants, recite the fact that he pleaded guilty the next day to the charge of being a disorderly person in violation of the city ordinance. Plaintiff replied to both answers, putting all of the material allegations in issue.

The court's decision deals largely with the facts and held that the plaintiff's actions disrupted the business of Harold's Club, and was an interference with its business. With reference to the fact that he was brought to the city jail about 5 o'clock in the evening and that no charge was placed against him until between the hours of 10:00 and 11:00 of the following morning, the learned trial judge said: 'The time in which or for which he was incarcerated, approximately eighteen hours--I think we can take judicial notice of the fact that that began about five o'clock in the afternoon, approximately, and continued until regular business matters between ten and eleven o'clock the following morning. And as I understand then, this complainant didn't ask the police department for an attorney. He didn't ask them for bail, but he himself said that he wanted them to call his wife so she would know what had happened to him * * * taking into consideration the time during which this delay is charged as an element of recovery for damages, this was a time when it was not ordinarily convenient for particular or special attention to this particular prisoner at that time.' In its formal findings the trial court found in part as follows:

'IV. That defendants, Charles Nichols and George Stone are, and during all times mentioned in said complaint were and now are police officers of the City of Reno, Washoe County, State of Nevada.

'V. That on the 16th day of April, 1946, plaintiff was a patron of and in the gambling premises known as Harold's Club operated by Harold S. Smith and Raymond A. Smith in Reno, Washoe County, State of Nevada, and plaintiff with divers and sundry individuals, including women, was engaged in playing a gambling game known as craps or dice. That several times when the plaintiff threw the dice the dealer caught them with his stick and shoved them back to plaintiff because plaintiff was not shooting them so that they would bounce against the end of the table. That each time it became plaintiff's turn to throw the dice he demanded a change of dice from the dealer. That plaintiff, while engaged in said game criticized and found fault with the manner in which the dealer was carrying on said game, and when plaintiff lost a bet, he cursed and swore in a loud and abusive manner. That on numerous occasions the dealer in said game requested the plaintiff to stop swearing or else plaintiff would have to leave, but plaintiff continued to swear and use abusive language and in a loud tone of voice to and toward the dealer, whereupon plaintiff was requested to and did cease playing the game and left the table. That while engaged in playing the game of dice, plaintiff's conduct was such as to cause one of the women players to leave the table and was an interference with and disrupted the business of Harold's Club, and disturbed the peace of said Club.

'That because of the conduct of the plaintiff, the police were called and when defendants, George Stone and Charles Nichols, police officers, entered Harold's Club, they heard plaintiff state in a loud tone 'you can't turn this God-damn game this way,' clearly disclosing that plaintiff was still dissatisfied with the game, and when the said defendants, police officers, spoke to plaintiff about coming with them, plaintiff said the game was unfair; it was not straight; and was not on the level, and that he knew the law; thereby imputing publicly that it was a crooked game, prohibited by law. That plaintiff during the course of the conversation and in the presence of defendants, police officers Stone and Nichols, told said police officers that he would not go out voluntarily;

'That if he went out of the Club, the police officers would have to take him, which they did. That at the time defendants, Nichols and Stone, police officers, were at and in Harold's Club, the plaintiff by his conduct was then and there violating the law, and his violation of the law was in the presence of the said officers, Stone and Nichols, which justified them in arresting him. That the said defendants, police officers Stone and Nichols, informed the plaintiff that if he refused to leave Harold's Club voluntarily they would be required to take him by force. That while the said police officers, Stone and Nichols, escorted plaintiff from Harold's Club, plaintiff said to them he was determined to go back and settle his differences with Harold's Club. That the conduct of plaintiff at Harold's Club as disclosed by the testimony in this case, prior to his arrest by the defendants, police officers, and the statements of the plaintiff to the police officers as they were taking him from Harold's Club, made it plain to the Court that if the plaintiff had been released by the police officers, a serious breach of the peace might have occurred if plaintiff had been permitted to return to Harold's Club, and the Court feels that it is provident that defendants, police officers, did not allow plaintiff, for his own good, to return to Harold's Club.

'That plaintiff was thereafter confined in the City jail at Reno, Nevada, from 5:00 o'clock P.M. until between the hours of 10:00 and 11:00 A.M. of the following

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