The plaintiff brought this action to recover damages for alleged unlawful arrest and imprisonment by certain police officers of the city of Los Angeles. The defendants Butler, as chief of police, and Slaughter, as sergeant of police, were at no time connected with the arrest complained of, but are sued by reason of their being the superior officers of defendants Smith and Gross, who made the arrest. The ease was tried by the court sitting without a jury. At the conclusion of the plaintiff’s case the defendants Butler and Slaughter made a motion for a nonsuit as to them, which motion was denied. On findings favorable to the plaintiff, judgment was entered in his favor and against all the defendants, from which this appeal is taken.
*201 No error of law, or in the admission of evidence, occurring during the trial, is assigned, the question to be determined on the appeal being whether or not any of the defendants can be held liable on the plain facts, which appear without substantial contradiction. The discussion of the subject naturally divides itself into three heads: First, the relation of the chief of police; second, the liability of the sergeant of police, and, third, the responsibility of the arresting officers.
The arrest and detention of the plaintiff occurred during the recent war in which the government of the United States was involved. It was made by the defendants Smith and Gross, who were members of the “war squad” of the Los Angeles police department, organized expressly for the purpose of apprehending deserters and offenders against the United States selective service law (U. S. Comp. Stats. 1918, U. S. Comp. Stats. Ann., Supp. 1919, secs. 2044a-2044k). The defendant Slaughter, as sergeant of police, was in charge of this squad. Neither he nor defendant Butler, the chief of police, was directly concerned with the plaintiff's arrest. They were at no time personally present, did not authorize, and took no part in directing or making the arrest, and were not parties to the incarceration or detention of the plaintiff. Under these facts the judgment against these two defendants was clearly erroneous. In attempting to uphold the contrary view of the trial court, reflected in its findings and judgment, respondent relies upon the doctrine of
respondeat superior;
but that principle of law has no application to the facts in this case. There is a well-defined exception to the general rule which renders one responsible in a civil action for the tortious acts of those employed by or under him.
It is interesting to note in this connection that the framers of the charter of the city of Los Angeles recognized the line of demarkation which fixes the responsibility of the chief of police of the city for the acts of his subordinates. By section 54 of the Charter the chief of police, aside from his duty to supervise and control the police force of the city, is made “the principal ministerial officer of the corporation,” with certain prescribed duties relating to service of processes *204 of the police courts, similar to those performed by constables and sheriffs. As such ministerial officer he may, with the approval of the board of police commissioners, select and appoint one or more deputies from the police force, for whose official acts the charter expressly provides he shall be responsible.
What we have -said disposes of the contention that the defendant Butler, as chief of police, is liable to the plaintiff in the instant ease.
In measuring the conduct of the officers it is important to bear in mind the unusual situation at the time. The government had called millions of young men to service under the Selective Service Act. The plaintiff was of an age and class, all of whom had already been called, or were about to be. He actually received his induction papers within two weeks after his arrest, which would indicate that his call was imminent at that time. The usual presumption of innocence of crime was in a large measure overcome in this case by the age and classification of the plaintiff, and when to this was added the fact that he was so long a distance from his place of registration without any evidence to show that his ■whereabouts was known to the local board, it would appear that there was clearly probable cause for believing that he was a deserter within the meaning of the Selective Service Act. He could have avoided the unpleasant situation in which *207 he was placed by adopting either one of two simple expedients. He could have obtained from the local board in Oakland documentary evidence that he had notified it of his change of address, and was absent from its jurisdiction with leave. Being so far distant from his local board as to make it a hardship for him to respond and comply with its notices, or to perform any duty under the selective service law, or the draft regulation, or expecting to be at such distance, he should have applied to the Oakland board to have his classification and all future procedure in respect of himself transferred to a local board in Los Angeles. (Sel. Ser. Reg., sec. 144.)
The war is over and the right of a police officer to arrest a deserter is now a comparatively unimportant question, but it was a most vital matter when this occurrence took place. In view of the facts in this case, and in the light of the neglect of plaintiff to take the simple steps which he might have taken to prevent what occurred, we think it would be unjust to hold the defendants Smith and Gross liable for their action in the matter. We have been unable to find any case in which a charge of false arrest has been sustained where officers had made an arrest under such circumstances.
In the case of
Boatwright
v.
State,
The plaintiff testified that he told the officers at the time of his arrest that he had notified his local board of his new postoffice address. Both officers testified that he seated that he had not notified his local board of Ms change of address, and that the fact was entered upon the police blotter in stating the cause of his detention. The trial court, in order to reach the conclusion it did, must have disbelieved the testimony of the officers and accepted that of the plaintiff. Assuming, however, that the defendants were otherwise justified in the arrest of the plaintiff as a deserter, it is clear that his mere statement to them that he was not a deserter, or that he had notified the local board of Ms whereabouts, would neither require nor justify them to refrain from making the arrest. If the plaintiff was a deserter he would, of course, make whatever statements would have best served his purpose in escaping arrest for that crime. If police officers had to accept the word of persons about to be arrested as to their guilt or innocence, few arrests would be made. We cannot do better in this case than to adopt, the language of the supreme court of New York in Hawley v. Butler, 54 Barb. (N. Y.) 490, 504: ”... and it is not singular that the person arrested, not being a deserter, protested his innocence in that particular; but a public officer cannot in all cases accept of that as a defense. The guiltiest of felons have made the same protest. It is a safer rule, however, for courts to follow in such cases, to decide whether probable cause is, or is not, shown, than to rely upon the protestations of innocence of the persons arrested. I have never learned, before, that such protestations created a liability upon the arresting officer. And where there is probable cause, whether it appears from extrinsic circumstances, or from the conduct, falsehoods or contradictions of the party *209 arrested, the officer acting without malice or bad motive, will be protected, if acting in the line of his duty; . . . ”
In that case the court was considering a charge of false imprisonment where the arrest had been made for desertion. The plaintiff had resided in Montgomery County, New York, and returned after an absence of several years in August, 1883, wearing a portion of a soldier’s uniform. Soldiers were forbidden by the laws of the United States to sell or dispose of their military outfits. The defendants had been informed by government officers that this long absentee had returned and was in possession of government clothes and was believed to be a deserter. When questioned, he denied having been in the service and denied having any soldier’s uniform, but upon further examination he admitted having a uniform and explained how he came into possession of it. Upon these conflicting statements he was arrested and it turned out that he was not a deserter and had never been in the government service. The court, in discussing the matter, made the following observations:
“The question, whether the defendants had probable cause for the arrest upon undisputed facts, is a question for the court, not for the jury. (West v. Baxendale, 9 Com. B. 141; Sutton v. Johnstone, 1 Term Rep. 507, 545, per E'yre, Baron.) Per Lord Mansfield: ‘If the facts are in conflict, the jury must find the facts, and when found, it is a question of law, whether they amount to probable cause.’ (Id.)
There is no conflict here, on the trial, as to any material fact in this case. The plaintiff’s evidence in this respect agrees with that of the defendants. No point was raised or made on the trial that the arrest was made with motives of malice or oppression. The defendants were public officers. They had public duties to discharge. They were called to act in perilous, arduous and difficult times. They were invested with legal' authority to act. The law of the country imposed upon them a public duty, for public purposes. They were punishable for neglect of duty, if they neglected to act in a ease where there was sufficient or probable cause for acting. The safety of. the government, and the discipline of the army, depended upon their fidelity, and the country was materially interested in their conduct. It was the duty of the court, in such a case, unflinchingly to come up to the standard of duty, and pass upon the questions that had been
*210
committed to, and appropriately belonged to them. It would be a reproach to a court, under such circumstances, if through timidity or a desire to shirk responsibility, they should leave to the jury a question which, by the theory of our law, they are incompetent to try, to wit, whether probable cause for arrest had been shown. It is not only proper for the court, but by the wisdom of the sages of the law the courts are directed to give great latitude in the review of the acts of such officers. In the case of
Wall
v.
McNamara,
tried by Lord Mansfield, sitting at Westminster, in Michaelmas term, 1779, he said: ‘In trying the legality of acts done by military officers in the exercise of their duty, great latitude ought to be allowed; and they ought not to suffer for a slip of form, if their intention appears by the evidence to have been upright; it is the same as when complaints are brought against inferior civil magistrates, as justices of the peace, for acts done by them in the exercise of their civil duty. The principal inquiry to be made by a court of justice is, how the heart stood? and if there appears to be nothing wrong there, great latitude will be allowed for misapprehension or mistakes.’ See also the sensible remarks of Rosekrans, J., in
Colton
v.
Beardsley
(
The judgment is reversed as to all the defendants.
Wilbur, J., Shurtleff, J., Shaw, C. J., Lawlor, J., and Richards, J., pro tern., concurred.