Appeal
from Circuit Court, Multnomah County; Jacob Kanzler, Judge.
Action
by Lowell C. Paget against John L. Cordes. Judgment for
plaintiff, and defendant appeals. Reversed and remanded, with
directions.
This is
an action for assault and battery, and false imprisonment.
The first count in the complaint is as follows:
"That
at Portland, Oregon, on or about the 16th day of June
1927, the defendant, at the police station in the city of
Portland, Oregon, wantonly, willfully, maliciously and
unlawfully assaulted the plaintiff by violently seizing the
plaintiff and gripping his right arm and jerking and
throwing the plaintiff about the lobby of the said police
station in the presence of the friends and acquaintances of
the plaintiff. That the defendant laid such violent
vice-like grip upon the right arm of the plaintiff that he
left his arm scarred and bruised for several days
thereafter, thus creating great pain and suffering, both
mentally and physically, and caused a great shock to the
nervous system of plaintiff."
There
is a second count to the effect that upon the same date the
defendant "wickedly, wantonly, maliciously, wrongfully
forcibly, and unlawfully imprisoned plaintiff in the city
jail of the city of Portland, Oregon, at Second and Oak
streets; that at the time of the said false imprisonment the
defendant was not armed with any warrant of arrest for
plaintiff, nor were any charges of any kind or character then
on file in any court of the city of Portland, or any other
court, against the plaintiff, accusing plaintiff of the
violation of any ordinance of the city of Portland, nor any
law of the state of Oregon or of the United States."
In
other respects, the count is word for word the same as the
first count. There is a general prayer for relief, wherein
the plaintiff asks $10,000 general damages upon the first
cause of action, the sum of $5,000 punitive damages, and a
like sum upon the second cause of action.
The
defendant answered, admitting that he was a member of the
police force, and denying every allegation in paragraph 1 of
the complaint, also denying the second and third paragraphs
and admitting that plaintiff was reared and educated in the
city of Portland, comes of a good family, long established in
business, had himself been established in business for many
years, is an attorney at law admitted to practice in all the
courts of the state of Oregon, and has always heretofore
enjoyed a good reputation and the respect of his friends in
the city of Portland, and denying the allegations as to the
injury and damage and humiliation of the plaintiff.
By way
of a separate answer, the defendant alleges that he was a
duly appointed, qualified, and acting police officer of the
city of Portland, and at all the times mentioned in
plaintiff's complaint was assigned to duty at police
headquarters at Second and Oak streets in said city. The
answer then continues as follows:
"That
at all the times herein mentioned there was in full force
and effect Ordinance No. 32923 of the city of Portland
entitled 'An ordinance on the use of streets, and
declaring an emergency,' passed by the council June 6,
1917, and approved by the mayor on the same day, and
Ordinance No. 50418 amendatory thereof, entitled 'An
ordinance amending paragraphs (b), (d) and (e), section 2,
article I, Ordinance No. 32923, relating to traffic, adding
thereto a new paragraph to be designated as paragraph (q),
and amending section 9, article I, of said Ordinance No.
32923, and declaring an emergency,' passed by the
council September 22, 1926, and approved by the mayor on
the same day. That said ordinances provide regulations
governing the use of the streets of the city of Portland,
by automobiles and other vehicles, and more especially the
time, place, and manner of parking such vehicles on said
streets, and provide a penalty for the violation thereof.
"That
the duties of the defendant were and are in connection with
the enforcement of said Ordinance No. 32923 as amended by
Ordinance No. 50418 and particularly with reference to
violations of the parking regulations contained therein.
That such provisions are enforced by the bureau of police
by placing a traffic tag or notice in the automobile of the
offender in lieu of actual arrest, which tag requires the
offender to report to the traffic window at the police
station. That at the time mentioned in the complaint
defendant was detailed to duty at such traffic window with
orders from his superior officers and instructions from the
municipal court of the city of Portland to demand, receive
and receipt for bail from such persons. That it was and is
further the duty of the defendant to check up on persons
failing to report as required by said traffic tags and to
require appearance by further notice or by arrest as the
case may require.
"That
on or about the 13th day of May, 1927, a traffic tag was
placed in plaintiff's automobile, notifying the
plaintiff to appear at the traffic window of the police
station for parking his said automobile in a loading zone.
That plaintiff ignored and failed to respond to said
traffic tag, and that subsequently in due course the
defendant notified the plaintiff by mail to appear at the
police station for such violation. That on the 16th day of
June, 1927, in response to said mailed notice, plaintiff
appeared at the traffic window of the police station, the
defendant at that time being on duty, and was advised by
the defendant of the charge against him and courteously
requested to post bail of $2.00 fixed by the municipal
court of the city of Portland for such offense. That
plaintiff wholly refused to comply with defendant's
request so made, pursuant to his duties and the
instructions of the municipal court, and turned away from
said traffic window. That defendant thereupon requested the
plaintiff to accompany the defendant to the office of the
captain in command of the police station, and that
plaintiff again refused to comply. That the defendant
thereupon, pursuant to his orders and duties, took the
plaintiff by the left arm and led him into the
captain's office upon the opposite side of the corridor
of the police station.
"That
the defendant at all times acted in good faith and without
malice toward the plaintiff and in accordance with orders
issued to him. That the defendant believed at all times
that he was acting within his authority. That the defendant
did not at any time use unreasonable force, nor did he at
any time use sufficient force to injure the plaintiff, nor
did he subject the plaintiff to disgrace or humiliation,
and that the plaintiff was and is not damaged on account of
the foregoing actions of the defendant in any amount or sum
whatsoever."
There
was a like answer to the second cause of action, and, the new
matter in the complaint having been put at issue, there was a
trial to a jury wherein plaintiff testified in substance as
follows:
"*
* * And I went over there and took my tag, which told me to
report to the traffic window, and I asked the man, that was
Mr. Cordes, to please tell me what this was about, and he
went back to his files and pulled out a card and showed it
to me, for overtime parking, or parking in a loading zone
and that particular card, the original of that particular
card, that I recognized from the date on it, had written
across the face of it, 'Hold for court. Do not
fix;' and I was taking that original card down to the
police station, and I ran into an inspector that I know,
and I said, 'What do you do with a card like this?'
He said, 'Give it to me, and I will take care of it for
you;' and I thanked him, and didn't go on to the
police station. That was some weeks before the day, to make
the matter clear. So I told Mr. Cordes I understood that
matter was taken care of, and he said, 'That is you;
you are always taking care of things; you haven't paid
a penny this year.' I said, 'Do you hold that
against me?' He said, 'Yes.' I said, 'Have
you got anything else against me?' He said,
'No.' He said, 'Say, do you want to give me
$2?' I didn't quite understand about wanting to
give him $2. I said, 'No, I don't want to give you
$2.' He said, 'Say, do you want to go
upstairs?' I said: 'No, I don't want to go
upstairs at all. I turned around to this man that had been
to lunch with me. When I turned away from his desk, I was
facing, like facing this jury box. Here would be the
counter, and Mr. Cordes would be behind the desk, the same
ratio; you come into the police lobby like that door there
(indicating). I turned to this man and I said, 'I
wonder what I should do about this thing;' and the
first thing I knew, before I could get an answer out of
this party with me, some fellow had me by the right arm,
caught hold of me here (indicating), and was pulling me all
over the police station as fast as he could. I said,
'Say, I don't think you have to treat me this
way,' and he dragged me through an alley-way--
"Q.
(interrupting) Who was this fellow? A. It was Mr. Cordes.
"Q.
All right. A. And he dragged me into a place; Sergeant Bunn
was there, and Lieutenant Epps; and both Sergeant Bunn and
Lieutenant Epps were very busy preparing for this parade
that was going to be later on that afternoon; and he
dragged me into this place very forcibly. I was quite
perturbed and excited about being dragged in. I didn't
want to talk to anybody because I was afraid I would say
something that would give them an excuse to continue the
kind of treatment I had received so far; so I asked the
sergeant if he would please excuse me, I wanted to go out
in the lobby and pick up this party that had heard
everything that went on, our conversation, and bring him in
and...
