Shires v. Cobb

• Decision Date: 24 April 1975
• Citation: 271 Or. 769,534 P.2d 188
• Parties: James William SHIRES, Jr., Respondent, v. Juanita E. COBB and Arden-Mayfair, Inc., dba Mayfair Market, Appellants.
• Court: Oregon Supreme Court

Page 188

534 P.2d 188

271 Or. 769

James William SHIRES, Jr., Respondent, v. Juanita E. COBB and Arden-Mayfair, Inc., dba Mayfair Market Appellants.

Supreme Court of Oregon.

Argued and Submitted April 2, 1975.

Decided April 24, 1975.

Samuel R. Blair, of Ady & Blair, Salem, argued the cause and filed briefs for appellant Cobb.

Ridgway K. Foley, Jr., Portland, argued the cause for appellant Arden-Mayfair, Inc. With him on the briefs were Gordon Moore, Kenneth E. Roberts, and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

Bruce W. Williams, Salem, argued the cause and filed a brief for respondent.

Before McALLISTER, P.J., and DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

HOWELL, Justice.

This is a negligence action in which plaintiff alleges that defendant Cobb, an employee of defendant Arden-Mayfair acting within the course and scope of her employment, 'negligently identified' the plaintiff to police and caused robbery charges to be filed against him. The jury returned a verdict for the plaintiff and both defendants appeal. For the first time on appeal, the defendants demur to the complaint on the ground that it fails to state facts sufficient to constitute as cause of action. ORS 16.260(6). ¹

This case arose out of a robbery of the Mayfair Market in Salem on January 7, 1972, and the subsequent identification of the plaintiff as the robber. The plaintiff's arrest was the result of a description of the robber given the police by Mrs. Cobb and a subsequent identification by Mrs. Cobb of the plaintiff as the person who robbed her. ² The charges against the plaintiff were subsequently dismissed.

Plaintiff, in his complaint, alleges:

'That at all times material herein, defendant Juanita Cobb was an agent and employee of Mayfair Market, and at all times herein was acting within the course and scope of her employment.

'That on or about the 7th day of January, 1972, defendant Juanita Cobb negligently identified the plaintiff as a person who robbed the Mayfair Market, and upon such negligent identification, there was caused to be issued a criminal complaint charging the plaintiff with robbery in the third degree.

'That on or about the 10th day of January, 1972, a complaint was sworn out in the District Court of the State of Oregon for Marion County, accusing the plaintiff of the crime of robbery in the third degree. As a result, a warrant of arrest was issued and plaintiff was arrested, placed in jail and was required to post a bond to procure his release.'

As forcefully asserted by plaintiff in his brief, this is an action grounded in negligence rather than in malicious prosecution or false imprisonment. Therefore, plaintiff contends that 'good faith and honesty are irrelevant' and 'probable cause is not at issue in this case.'

It is apparent that plaintiff has failed to state a cause of action and defendants' demurrers must be sustained. It is the law in this state (and we have found no cases from other jurisdictions to the contrary) that public policy will protect the victim of a crime who, in good faith and without malice, identifies another as the perpetrator of the crime, although that identification may, in fact, be mistaken. ³ As stated in White v. Pacific Tel. & Tel. Co., 162 Or. 270, 281, 90 P.2d 193, 198 (1939):

'* * * It was the duty of the defendant company and of its officers and employees to use all legal means to apprehend and convict the guilty persons and, in doing so, if they acted with good faith, the law will protect them against an action for damages although the accusation may in fact be unfounded. This rule is founded on grounds of public policy to encourage the exposure of crime and the punishment of criminals. (Citing authority.)'

In Aiken v. Shell Oil Co. et al. and Huey, 219 Or. 523, 348 P.2d 51 (1959), as in the instant case, this court was faced with the following question:

'* * * Can a private citizen against whom a crime has been committed, and upon whose complaint the wrong person was arrested and later released, be required to respond in damages Upon a complaint charging him merely with negligence, * * *?' 219 Or. at 525, 348 P.2d at 52. (Emphasis added.)

The court answered that question in the negative.

As noted above, the plaintiff in the instant case contends that probable cause and lack of malice are not available as defenses in a complaint charging negligent identification. The court in Aiken pointed out that such a complaint in negligence blends the theories of false arrest, false imprisonment, malicious prosecution, and negligence. '(T)he defendant is required to bear the onus of those terms and charges, while being limited in his defense to answering a charge of negligence, on which the plaintiff elected to rely.' 219 Or. at 535, 348 P.2d at 57.

Plaintiff in the instant case relies on the case of Turner v. Elliott, 91 Cal.App.2d 901, 206 P.2d 48 (1949), in support of his proposition that a cause of action will lie for negligent identification. However, the California Supreme Court, in Turner v. Mellon, 41 Cal.2d 45, 257 P.2d 15, 17 (1953), stated:

'Plaintiff relies upon Turner v. Elliott (1949), 91 Cal.App.2d 901, 904, 206 P.2d 48, wherein understandable and commendable concern is shown for the victims of mistaken identification and ensuing false arrest. We share this concern but we think that proper concern for the victim in such a case must stop at some point along the line where to support his claims further would contravene the public interest. We think...