Pixton v. Dunn, 7528

• Decision Date: 14 December 1951
• Docket Number: No. 7528,7528
• Citation: 120 Utah 658,238 P.2d 408
• Parties: PIXTON, v. DUNN.
• Court: Utah Supreme Court

Page 408

238 P.2d 408

120 Utah 658

PIXTON, v. DUNN.

No. 7528.

Supreme Court of Utah.

Dec. 14, 1951.

Backman, Backman & Clark, Salt Lake City, for appellant.

B. Z. Kastler, Jr., Donald W. Redd, Salt Lake City, for respondent.

JONES, District Judge.

This is an appeal from the judgment in an action involving false arrest and imprisonment. The case was tried to the court sitting without a jury. There was a recovery. Appellant asks this court to vacate the judgment against him because (1) the findings of fact are not supported by the evidence, and (2) the court erred in its interpretation and application of the law.

Are the findings supported by the evidence? Appellant argues that there is no evidence in the record to support the trial court's finding to the effect that appellant unlawfully and maliciously had respondent arrested and taken to the police station. We turn now to the proof offered by respondent to see if there be any factual support to this finding. On the day of her arrest, respondent was at a used car lot, where the equity in the car which her husband had purchased from appellant's principal on a conditional sales contract was being offered for sale. In appears that respondent's husband had not complied with his contract covering the purchase of this vehicle, and appellant had been on the lookout for the car. When appellant discovered the vehicle at the used car lot, he summoned the police. Upon the arrival of the peace officers, appellant carried on a private conversation with one of the officers. Then this policeman approached respondent and told her that she had better go to the police station and for her to get into the police car (no warrant for respondent's arrest was in existence, and it does not appear that she had committed any public offense). Respondent complied with the direction of the officer and was transported to the police station and there imprisoned. Appellant, in his own vehicle, also proceeded to the police station. At that place a conversation took place between these parties in the course of which appellant informed respondent that he not only had caused her arrest but was going to send her to the penitentiary.

Are these facts sufficient to support the findings? The answer must be in the affirmative. It is not essential for the plaintiff in an action of this kind to prove an express command to the officer who makes the illegal arrest in order to recover. It is sufficient if the circumstances developed by the plaintiff support an inference that the defendant was the directing or instigating force back of the illegal arrest. 35 C.J.S., False Imprisonment, Sec. 24, page 527. In the instant case the trier of the facts was confronted with evidence which, if believed, justified the finding that appellant was the motivating power back of respondent's unlawful arrest and incarceration. The trial court saw fit to accept this testimony as true, and we now determine, after having examined the record, that such evidence was sufficient on which to base the finding in question.

Appellant attacks the finding of the trial court to the effect that Mr. Dunn had no reason to believe that respondent had committed a crime at the time of her arrest. In support of this contention, he points out that his proof showed that respondent was present and participated in the original car exchange transaction wherein his principal was tricked and duped out of its property by certain false representations made by respondent's husband, and that these facts were legally sufficient to cause appellant to honestly believe that respondent had committed a crime when he saw her there at the used car lot in question attempting to dispose of the car so fraudulently obtained. It is true that appellant offered evidence along these lines, but respondent also introduced evidence, and her proof was diametrically opposed to that presented by appellant. According to respondent's testimony, the automobile transaction was between her husband and appellant, and all she did on the day of her arrest was to innocently accompany another who was trying to dispose of the spouse's equity in the car in question. It should be added that respondent's testimony was corroborated, at least in part, by documentary evidence and the testimony of other witnesses. The trial court, at the conclusion of the case, elected to accept as true the evidence presented by respondent, and to reject, as untrue, that introduced by appellant. That disposes of this issue because, this being an action at law, the appellate court is powerless to substitute another evaluation of the evidence for that of the trial court, where such evidence was conflicting. See Const. Art. VIII, Sec. 9.

Appellant complains because the trial court refused to grant his motion for a dismissal of the action, by rendering its judgment against him, and by refusing to grant the motion for a new trial. These contentions all merge into one proposition, viz.: What are the appropriate principles of law involved in this action? The two Utah cases cited by appellant are not in point, Marks v. Sullivan, 9 Utah 12, 33 P. 224, 20 L.R.A. 590, and Smith v. Clark, 37 Utah 116, 118, 106 P. 653, 26 L.R.A.,N.S., 953, for the reason that they both involved factual situations arising out of complaints preferred before magistrates who saw fit to issue warrants of arrest. Here, appellant never did see fit to present the facts to a magistrate. See Sec. 105-11-2, U.C.A. Appellant's remaining citations are authority for the principle that one who merely gives information to an officer with or without probable cause or malice, without requesting, directing, or instigating the arrest and subsequent imprisonment, does not thereby make himself liable. 22 Am.Jur. 376; Webb v. Prince 62 Ga.App. 749, 9 S.E.2d 675, 677; Snider v. Wimberly 357 Mo. 491, 209 S.W.2d 239; Rich v. McInery, 103 Ala. 345, 15 So. 663; and Lemmon v. King, 95 Kan. 524, 148 P. 750, L.R.A., 1915E, 882. We have no quarrel with this doctrine, but must conclude that the same cannot be controlling here because the evidence is such that the trial court could reasonably find, as it did, that appellant did instigate and direct the officer to make the illegal arrest and imprison this respondent. And these same precedents are also authority for the principle that he who participates in the unlawful arrest or imprisonment, or who instigates, authorizes, directs or assists an officer to do the unlawful act, or procures the unlawful arrest without process, becomes liable for false imprisonment. See Sec. 35, Torts, Restatement of the Law; 22 Am.Jur. 371; and 12 Cal.Jur. 434. This we hold to be a correct statement of the law, under the findings of the court. It, therefore, appears that the lower court did not err in its interpretation and application of the law.

Finally, appellant asserts that the court erred in finding that appellant knew, or should have known, that respondent's son would be taken from respondent upon her arrival at the police station. No argument is submitted in support of this proposition, nor is any citation of authority made. We have made a cursory examination of the record in this regard and find no error. The judgment should be, and, accordingly is, affirmed. Costs to respondent.

WADE, J., concurs.

WOLEF, Chief Justice (concurring specially).

In order to explain my position, it is necessary to fully state the evidence, controverted and uncontroverted.

On May 24, 1949, respondent accompanied her husband to the used car lot of the Prove Lincoln Mercury Company at Provo, Utah. Appellant is president of this company. Respondent's husband, Mr. Arthur J. Pixton, in negotiating for the purchase of an automobile, falsely represented that he was Mr. Robert C. Coomes, who resided at 1055 South 4th East, Salt Lake City, Utah; that the nearest relative with whom he was not living was P. G. Bryan, 125 Paxton Avenue, Salt Lake City, Utah. Mr. Pixton purchased a 1948 Studebaker convertible. He turned in a 1947 Mercury sedan as a trade-in to apply on the purchase price. Mr. Pixton did not produce title papers to the Mercury, which bore Nevada license plates, but stated that the papers would be delivered to appellant within two days, or appellant would be notified he was unable to find them. Temporary stickers were placed on the windows of the Studebaker when it was delivered. At the trial, respondent denied that she participated in making any of the false representations, but she was present at the time the transaction took place. The conditional sales contract and buyer's statement were falsely signed 'Robert C. Coomes'. The day following the sale, appellant discovered that the Nevada license plates, which were attached to the Mercury sedan when it had been turned in, were missing and had been removed without appellant's knowledge or consent. Respondent's husband did not show up with the title papers to the Mercury on May 26th, the appointed day, and appellant being concerned about the whole affair went to Salt Lake City and inquired about Mr. and Mrs. Coomes at the furnished addresses. No one by that name was known at the given addresses.

After futile inquiry, appellant went to the Salt Lake City Police Department and related the circumstances under which possession of the Studebaker had been obtained. After describing 'Mr. Coomes' to Detective Saathoff of the Auto Theft Bureau, Detective Saathoff produced a photograph of Arthur J. Pixton and appellant was informed that the sheriff of Tooele County had a warrant for the arrest of Mr. Pixton. Not until this time did appellant become aware of the true identity of 'Mr. and Mrs. Coomes'. Appellant then reported to the Salt Lake City Police Department that the car had been obtained by 'fraudulent purchase' and a record was so made.

On June 5, 1949, Mr. Dunn observed a similar Studebaker in the southeastern part of Salt Lake City bearing Nevada license plates. Mr. Dunn took the...