McLean v. Sanders

• Citation: 143 Or. 524,23 P.2d 321
• Parties: McLEAN v. SANDERS et al.
• Decision Date: 27 June 1933
• Court: Oregon Supreme Court

23 P.2d 321

143 Or. 524

McLEAN v. SANDERS et al.

Supreme Court of Oregon

June 27, 1933

Department 1.

Appeal from Circuit Court, Multnomah County; James P. Stapleton Judge.

Action by Winifred McLean against Clyde E. Sanders and others, for false imprisonment. Judgment for plaintiff, and defendants appeal.

Reversed and remanded, with directions.

See also 139 Or. 144, 7 P.2d 981.

BEAN J., dissenting.

Frank S. Grant and James West, both of Portland, for appellants.

Ronald L. Reilly, of Portland (John Ronchetto, of Portland, on the brief), for respondent.

KELLY Justice.

On July 31, 1929, a search warrant was issued authorizing the search for intoxicating liquors of a residence at 28 East Sixth street, Portland. Defendants were members of the police force of that city. Bearing this search warrant, they entered the house, and, while there, one of them arrested plaintiff for disorderly conduct alleged to have been committed in the presence of the arresting officer. The arrest was followed by the transportation of plaintiff, together with a gentleman who is now her husband, and her parents, in the patrol wagon to the police station, and also by detention at the police station for about two hours. Bail was then posted, and plaintiff was released.

This action was instituted in the district court to recover damages because of said arrest and imprisonment. The case was appealed to the circuit court.

In their further and separate answer defendants allege that, in defendants' presence, plaintiff violated the provisions of an ordinance of the city of Portland defining disorderly conduct; that defendants arrested plaintiff for said breach of said ordinance, and that plaintiff was convicted of said offense in the municipal court of said city. The reply consists of denials only.

Defendants introduced a certified copy of the record of plaintiff's said conviction, the same being as follows:

"In the Municipal Court for the City of Portland, County of Multnomah, State of Oregon.

"Before Municipal Judge and Ex-Officio Justice of the Peace.

"City of Portland vs. Winifred McLean, Defendant.

"Judgment.

"On this 1st day of August A. D., 1929, the above named defendant having been brought before me, Municipal Judge for the City of Portland, in the County and State aforesaid on a charge of violating Ordinance No. 32926 of the City of Portland, on the 31 day of July, 1929, in said City of Portland, by disorderly conduct. And the said defendant having thereupon pleaded not guilty, and been duly tried by me and upon such trial thereof duly convicted I have ordered and adjudged that the case be continued for sentence.

"F. W. Stadter

"Municipal Judge for the City of Portland, and Ex-Officio Justice of the Peace."

Over defendants' objection plaintiff was permitted to introduce testimony tending to show that plaintiff was not convicted in said municipal court, but was acquitted; and that no record of conviction had been entered by said court when the case at bar was instituted. The question is here presented whether a record of a judgment of conviction may thus be impeached. We think not.

"A judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect to its validity, verity or binding effect, by parties or privies in any collateral action or proceeding, except for fraud in its procurement." Subject: Judgments, 34 C.J. 511 § 815.

An inferior tribunal having acquired jurisdiction, the same intendment of regularity will be made as for the proceedings of superior courts. Thompson v. Multnomah County, 2 Or. 34, 41; Subject: Judgments, 34 C.J. 517, § 823.

Among other things, the trial court instructed the jury as follows: "Now it appears in this answer and there has evidence been introduced, that she was brought into the municipal court and there some proceedings were had, and the extent and nature of those proceedings is in question here. One side contends that certain things happened, and the other side contends that they did not happen. In any event, I instruct you that the conclusions reached by the municipal court in this case are not final as far as this court is concerned in this case. I let that evidence come in here, be introduced on this theory, that it was a part of the history of this transaction; that all the facts and circumstances surrounding this transaction were and are in my opinion proper material to be considered by you in reaching your conclusion in this case. It was on that theory and that theory alone that it was let in. A decision of the Municipal Court, if there was a decision, is not binding or conclusive on you as a jury or on me as a court. It is proper material, however, for me to hear and understand and know about and consider. That is the reason it came in here."

The circuit court also instructed the jury that: "A consideration by you of the municipal court trial is allowed only for the purpose of acquainting you with all the history of this transaction from beginning to end, and in no wise is to be regarded by you as determinative of any question in this case etc."

We think that these instructions were erroneous. While there are authorities supporting them, the weight of authority and the better reason support the rule that, where a person has been convicted, either after trial or upon a plea of guilty, of a crime or of the violation of a municipal ordinance, an action for false imprisonment will not lie. Hushaw v. Dunn, 62 Colo. 109, 160 P. 1037; Olson v. Wall, 58 Utah, 20, 196 [143 Or. 528] P. 1014; Williams v. Brooks, 95 Wash. 410, 163 P. 925; Waddle v. Wilson, 164 Ky. 228, 175 S.W. 382; Billington v. Hoverman, 7 Ohio Cir. Dec. 358, 18 Ohio Cir. Ct. R. 637; Erie R. R. Co. v. Reigherd, 166 F. 247, 92 C. C. A. 590, 20 L. R. A. (N. S.) 295, 16 Ann. Cas. 459; Crowley v. Rummel, 22 Ariz. 179, 195 P. 986; Jones v. Foster, 43 A.D. 33, 59 N.Y.S. 738; Cuniff v. Beecher, 84 Hun, 137, 32 N.Y.S. 1067, 1069.

In the case last above cited, the court say: "The spectacle of a convicted defendant in a criminal case securing damages in a civil action, because of his arrest upon the charge for which he had been criminally convicted,...