219 P. 452 | Cal. | 1923
The complaint in the action before us forms the basis of the order granting respondent's motion for a change of the place of trial from the county in which *188 it was commenced, to wit, the city and county of San Francisco, to the county of respondent's (defendant) residence, Sacramento county, from which order this appeal is taken. The importance of said complaint is a sufficient justification for its reproduction at length. It follows:
"Plaintiff complaining of defendant for cause of action alleges:
"That said charge of larceny was wholly false and plaintiff did not at any time commit larceny or theft or any crime or offense against defendant or his property and was wholly innocent of any charge made against him by said defendant and had not committed any act which made him subject to arrest or imprisonment.
"That in making said false charge and causing said arrest and imprisonment, defendant acted with deliberate and premeditated malice.
"That by reason of the premises plaintiff has been damaged in the sum of five thousand dollars ($5,000.00) no part of which has been paid." The prayer follows:
Appellant contends that the complaint fails to state a cause of action for malicious prosecution and respondent *189
insists that it fails to state a cause of action for false imprisonment. The affirmative sequela of appellant's proposition is, therefore, that the complaint states a cause of action for false imprisonment, while that of respondent is that it states a cause of action for malicious prosecution. While the elements of both causes of action are somewhat mixed by the pleadings we are of the opinion that the common-law distinctions of the two causes of action are not important, as the question must be determined by the application of section
All of the elements essential to constitute a cause of action for false imprisonment are to be found in the complaint, segmentally appearing, it is true, but nevertheless existing. [2] The elements essential to constitute a cause of action for malicious prosecution are absent, to wit, an allegation of a want of probable cause for instituting the prosecution and an allegation that the proceedings terminated favorably to plaintiff. These elements are essential to an action for malicious prosecution. (Nelson v. Kellogg,
It is the position of appellant that false imprisonment is a common-law trespass, while malicious prosecution is a trespass on the case. Both come within the class of common-law injuries to person. The effort of appellant, therefore, is to make a distinction between false imprisonment and malicious prosecution so as to avoid the effect of Graham v. Mixon,
Appellant for the first time made the point in his reply brief, filed in the district court of appeal for the first district, division two, that whether or not the complaint stated a cause of action for either false imprisonment or malicious prosecution it nevertheless stated a cause of action for assault and battery, and this being true, it is sufficient to defeat respondent's motion. [4] Points raised at this state of the proceeding for the first time have been refused consideration by this court unless some meritorious reason is shown why they were not made in the opening brief. (Kahn v. Wilson,
It will be observed, however, that the complaint contains no allegation of corporeal or physical injury by reason of any battery or violence.
Section
That portion of the section inclosed by brackets is the amendatory language added to the section by the legislature of 1911. The portion without brackets presents the section precisely as it stood before amendment so far as the point presented by this appeal is concerned.
It is conceded by appellant that prior to said amendment respondent would have had the right to have the cause tried in the county of his residence whether the facts constituted a cause of action for false imprisonment, malicious prosecution, or any other sort of trespass. The section must be examined, then, with reference to the question as to whether the legislature intended in cases of false imprisonment to change the law as it had long existed so as to deprive a defendant of a right which he formerly enjoyed.
Former Chief Justice Shaw, in Gridley v. Fellows, 166, Cal. 765 [
Again, Mr. Justice Melvin, in Graham v. Mixon, supra, quoting at considerable length from Gridley v. Fellows, supra,
concluded his review of the section as follows: "It will thus be seen that this court has never regarded the section as one which applies, so far as actions for personal injuries are concerned, to any but those based upon physical lesions. It is also to be remembered that although injuries are classified as injuries to property and injuries to the person (Code Civ. Proc., secs.
[5] We are of the opinion that the words "injury to person" are, by the language which follows in the code section, limited to the wrongful or negligent act of another *193 and that it was not intended by said amendment to extend the right of place of trial to such a trespass as is described by the complaint in the instant case. The specific terms indicate that the injuries to person within the contemplation of the legislature were those which cause physical injury or incapacity or which result in death.
There can be but little doubt that the increasing number of bodily injuries and deaths and injuries to property brought about by the general use of motor vehicles gave legislative suggestion for the amendment. And further, it is a part of our legislative history, which we take notice of, that the amendment under discussion was passed in 1911, the same year that the first industrial accident board act was passed. The legislation had to do with bodily or physical injuries or deaths resulting from injuries received in the line of various employments as by said act provided. The legislative mind at that session of the legislature was intensely engrossed with the subject of personal injuries and was not at all concerned with common-law trespasses. This is shown by the extent and character of legislation on the subject of physical injuries as contrasted with the fact that not a single code section defining false imprisonment, malicious prosecution, assault and battery, libel, or slander was amended or revised.
Upon examination of the code language, and aided by the construction given it by the decisions heretofore cited, and from a consideration of the legislative situation, we are of the opinion that no such radical change was made or intended to be made by the amendment as is contended for by appellant.
Because of the conclusion reached on other grounds it becomes unnecessary to discuss the rule as to a commingling of causes of action as affecting the right of a change of place of trial and which is treated in Ah Fong v. Sternes, supra, and Warner
v. Warner,
The order appealed from is affirmed.
Kerrigan, J., Lennon, J., Lawlor, J., Wilbur, C. J., and Waste, J., concurred.
Rehearing denied.
*194All the Justices concurred.