234 P. 869 | Cal. Ct. App. | 1925
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *114 This is an appeal by the defendant from a judgment awarding the plaintiff the sum of $1,650 damages, for and on account of four causes of action, two for unlawful arrests and two for malicious prosecution. It appears from the transcript that, on or about the third day of January, 1918, the plaintiff, W.P. Vernon, with others, located a certain placer mining claim named the "Questionnaire" situated in Plumas County, state of California; that in this location notice the claim was described as being situated in range 11 east; in October of the same year, upon having a survey made of the claim, it was discovered that the claim was really situated in range 12. Thereupon, and on the ninth day of that month, a new location was posted and recorded correctly describing the range in which the claim was situated. It also appears that from the date of the original location the plaintiff continued in possession of said mining claim, performed annual work thereon, and proceeded to some extent with the development thereof. This work was continued from time to time by the plaintiff down to the time of the occurrences constituting the gravamen of this action. Some time between the third day of January, 1918, and the first of October, 1918, the defendant Lumber Company purchased from the United States, through its forestry service, the timber situated on certain lands in *115 Plumas County. The area on which the timber purchased was situated embraces the mining claim of the appellant. Nothing was done by the appellant toward removing the timber situated on the plaintiff's mining claim until early in the spring of 1923, when the defendant began making preparations to remove said timber, and built a logging road and log landing in a certain ravine below the point where the plaintiff had theretofore been engaged in mining, and down which ravine the waters used by him in his mining operations had flowed and would naturally flow. It does not appear that the plaintiff knew anything of the construction of this road or of the logging dam.
Early in the month of May, 1923, the plaintiff returned to his mining claim and prepared to again work thereon, and, in doing so, turned water from the source of his supply through a ditch theretofore constructed by him conveying water to his diggings. On the 17th, while the plaintiff was at work, he discovered that water being used by him had been turned out of this ditch, and upon inquiry plaintiff was advised by one McDonald, the wood's foreman of the appellant, that he, McDonald, had turned the water out of the plaintiff's ditch and away from the plaintiff's diggings. Upon being advised of this fact the plaintiff on the following day, May 18th, called at the office of the appellant and inquired of I.M. Johnson, the manager of appellant, if the water used by him in his mining operations would cause appellant any injury. It appears that Mr. Johnson refused to discuss the matter with the plaintiff, but threatened to have the plaintiff arrested and taken to Quincy if he turned any water into that ravine and also told the plaintiff that he had "no business up there." Plaintiff returned to his mine and resumed work thereon, and while so engaged on the mine on May 19th he was arrested by Roy M. Johnson, an employee of the appellant, and son of I.M. Johnson. The arrest was made without any warrant having been issued for the apprehension of the respondent and without any complaint having been filed against him and while the plaintiff was engaged in working on the mining premises claimed as his property. Following this arrest the plaintiff was taken to Quincy and, as found by the court, imprisoned in the county jail at Quincy for the period of three hours, during which time I.M. Johnson consulted an attorney named M.C. Kerr *116 and the district attorney of Plumas County, and then went to the office of a justice of the peace at Quincy, swore to a complaint against the plaintiff, secured the issuance of a warrant of arrest and thereafter the plaintiff was arrested under said warrant; the plaintiff, being allowed to go on his own recognizance, returned to his mining claim and again resumed operations thereon, and on the morning of May 21, 1923, he was again arrested by the said Roy M. Johnson without any warrant, taken to the town of Quincy, and detained at the county jail for the period of two hours, during which time the said I.M. Johnson swore to a second complaint, procured the issuance of a second warrant, and the plaintiff was subsequently rearrested under said second warrant. Thus the plaintiff was arrested twice without any warrants and twice after warrants had been issued. It appears also that the plaintiff was detained and held in the custody of the said Roy M. Johnson several hours other and in addition to the time he was confined in the county jail at Quincy. A trial being had upon the first complaint, the plaintiff was acquitted and the second complaint was thereupon dismissed. Thereafter the plaintiff began this action, founded upon the alleged unlawful imprisonment on May 19, 1923, the alleged unlawful imprisonment on May 21, 1923, the alleged malicious prosecution of plaintiff, by reason of the first complaint sworn to by I.M. Johnson and the alleged malicious prosecution of plaintiff by reason of the second complaint sworn to by the said I.M. Johnson. Two other grounds were alleged which need not here be considered, as they are in nowise involved in this case. It may be stated that the transcript shows that the arrests made without warrants were made upon the direction and procurement of I.M. Johnson, the manager of the defendant and appellant in this case. The charge of false imprisonment embraced in the plaintiff's complaint rests upon his unlawful detention prior to the issuance of any warrant for his arrest.
Section
[1] The facts exhibited by the transcript in this case, which we have set forth, show that there was no effort made by the agents of of the defendant to comply with the provisions of section
The defendant's agents in this case did exactly what the supreme court of Massachusetts has said is unlawful to be done under such circumstances. The plaintiff was not only imprisoned while the agents of the appellant were not only not investigating the charge against the plaintiff, but were making efforts to have some charge placed against the plaintiff and his arrest thereafter effected under a warrant charging him with an offense. In Jackson v. Miller,
[3] Are the two causes of malicious prosecution supported by the record? Was there probable cause, and did the defendant's agents act upon the advice of counsel in such manner and degree as relieves the defendant from responsibility? *119
By way of special defense, the defendant alleged in its answer that it consulted M.C. Kerr, an attorney at law of good standing, having offices in Quincy, Plumas County, state of California, and, also, the district attorney of Plumas County, and stated to said persons all the facts of the case, and was thereupon advised by the said Kerr and the district attorney that a prosecution would lie against the plaintiff, and that the defendant acted honestly and in good faith upon that advice and thereupon instituted the prosecutions referred to in plaintiff's complaint. The finding of the trial court was that the agents of the defendant did not act either honestly or in good faith upon the advice of counsel and that the defendant's agents did not state to said persons all the facts in the case and the defendant's agents were not advised that a criminal prosecution would lie. The court also found that there was not probable cause for the prosecutions herein referred to. In Johnson v. Southern Pac.Co.,
The asserted superior title to the premises on which the plaintiff was working appears to have been really the basis of the prosecutions instituted against him and this superior claim appears to be based to a considerable extent upon the error which occurred in the plaintiff's first location notice. We do not here assume to consider any question of title other than as the same bears upon the finding of the trial court that there was no probable cause for the action taken by the defendant. The transcript shows that the plaintiff did the necessary annual assessment work upon his mining claim and that he had worked upon his claim every year after its location up to the time of his arrest. The testimony also shows that the defendant's manager had seen the plaintiff working his mining claim. The testimony in this particular is as follows: "Q. You knew that he (plaintiff) had been mining in that vicinity before? A. Yes, sir. I had seen him working there. Q. And in doing that you knew that he was mining on his own ground? A. I knew he was mining up there. Q. And you knew that he mined there *121 with water, and that that water would come down this particular creek where you built your logway? A. Yes, sir. Q. And you knew that before you built this road and log landing, didn't you? A. Yes." The testimony of the witness Orr, of the United States Forestry Service, is illustrative: "A. I told Mr. Vernon that I would like to have him show me where his claim was, so that if the claim was owned by him or he had a title to it, we could keep off of it. Mr. Vernon and Mr. Johnson and I walked up and found this notice on a tree. . . . Q. You refer to the notice dated October 9th, 1918? A. Yes, sir. Q. And where did you see that notice at that time? A. He did. Q. And what did he say about it, that is, Mr. Vernon? A. He said that was where he had filed the mining location. Q. What did you say to him? A. I asked him what date it was. Q. And what did he say? A. He said, `I don't know,' but he says, `We will look on the claim.' I says, `All right, we will look,' and it said October 9th, 1918. Q. And what did you say to him? A. I said, `Mr. Vernon, if that is the case your timber (claim?) has been taken up since the timber was sold to Mr. Johnson and under that procedure it would be necessary for us to go ahead and cut the timber to see that Mr. Johnson removed it.' . . . Q. And what did he say in reply to that? A. He says, `I think there is some mistake on this notice and let us check it,' and we checked the description and found it was wrong and I says, `I will go into the recorder's office and see if your filing date is right.'"
The question of title appears to have been taken up by the defendant with the Forestry Service of the United States and the following telegram received:
"San Francisco, Calif., May 18, 1923.
"Forest Supervisor
"Quincy California
"Notify owner Questionnaire Claim any interference with timber sale operations will result in legal proceedings Federal Court Recent decision Circuit Court Appeals sustains our position."
This telegram, or a correct copy of it, appears to have been exhibited to the plaintiff by some one of the defendant's agents. The witness then testified: "A. Mr. Vernon was, at *122 the time I called on him, eating his dinner. He came out and I handed him a copy of a telegram from the forestry and let him read it and in the presence of Mr. Erickson and myself he put on his glasses and read it. Q. And then did he hand it back to you? A. He did. Q. What did he say? A. `Well, what about it?' was his exact words, and I wanted to find out whether he was going to turn the water in or not, which I asked him. Q. What did he say? A. He said he was." The transcript shows more testimony along the same line, but the whole purport of it exhibits simply a dispute as to who was the owner of the premises, and this apparently was all founded upon the errors in the plaintiff's notices of location and as to what rights, if any, the plaintiff acquired thereunder, also the alleged superior right of the defendant to the unobstructed use of the premises in order to remove the timber standing thereon appears as an actuating motive in all the proceedings.
As to whether the defendant acted upon the advice of counsel, what advice was received, and what was stated to counsel, the appellant relies upon the following: Q. "And did you tell him what the Forestry Service had done about sending the telegram up? A. Yes. Q. And did you tell everything that you knew about this particular incident? A. Yes. Q. That caused you to complain against Mr. Vernon? A. Yes, sir. Q. And what did Mr. Kerr tell you? A. He suggested just exactly what I done. Q. And what was that, what did he suggest? A. I file a complaint against him for interfering with our operations. Q. Now, did you act honestly and in good faith upon the advice of Mr. Kerr? A. Absolutely, yes, sir. Q. Were you actuated by malice, hatred, or ill feeling, in swearing out the complaint against Mr. Vernon? A. Never had a word with him in my life and no malice against him whatever. Q. And when you acted upon the advice of Mr. Kerr and swore to this complaint were you actuated by an honest belief that he was guilty of the offense that you charged him with? A. Absolutely. Q. When you instituted the criminal prosecution against Mr. Vernon upon the advice of Mr. Kerr, did you honestly believe in good faith that he was guilty of the offense as charged against him? A. Absolutely, yes, sir. Q. Now, Mr. Johnson, besides consulting *123 Mr. Kerr before you swore to this complaint on May 19th, did you also consult the district attorney of this county? A. I did. Q. Mr. S.C. Young? A. Yes. Q. And did you state to Mr. Young all of the facts that you have stated that you stated to Mr. Kerr? A. I did. Q. Did Mr. Kerr accompany you to Mr. Young, the district attorney's office? A. He did. Q. And was he there during the time you stated the facts to him? A. Part of the time. Q. Did the district attorney — what did the district attorney tell you as to whether or not a prosecution would lie against the defendant — against Mr. Vernon? A. If it would what? Q. What did the district attorney tell you as to whether or not a complaint would be good against the defendant Vernon, against the defendant Vernon in that proceeding? A. He thought it was all right. Q. And who prepared the complaint? A. The district attorney, Mr. Young. Q. Now, did you state to the district attorney and to Mr. Kerr all of the facts within your knowledge in respect to this offense? A. Absolutely. Q. With which you had charged Mr. Vernon? A. Yes. Q. Mr. Kerr, did Mr. Johnson, Mr. I.M. Johnson consult you on the 19th day of May, 1923, in respect — A. (Interrupting.) As to the particular date — Q. Let me finish my question — in respect to whether or not he could swear to a complaint against Mr. Vernon? A. The date of the first complaint, that the first complaint was filed, Mr. Johnson, according to my best recollection of the thing, was, he called me on the phone in the morning before he came down and we had some conversation regarding Mr. Vernon turning in some water that was damaging the roadway, etc., and something was said about an injunction being prepared or in the course of preparation by the Forest Department. However, I think that I told Mr. Vernon over the phone that I would see him when he came down and upon his arrival in Quincy he either came to the office or called me up from the Forest office. I am not sure as to that. At any rate, we were together at the office of the Forest Supervisor of the Plumas National Forest, at the office in Quincy, and in conversation with Mr. Rogers there the matter of this timber sale and the rights under it were discussed and I don't know whether Mr. Orr was there or not, but at any rate, *124 there was something came up about there apparently had been some discussion as to this before and Mr. Rogers gave me a letter that was written by Mr. Dechant and giving the citations of the United States and Federal citations regarding the rights of a timber purchaser to move timber. Well, I think that was one of the things that I went — that the consultation at the Forest Office was as to the fact as to whether or not a timber sale had been made. That was substantiated. Then the matter of destruction of property, and Mr. Johnson informed me that the water had been turned in and was destroying the property and the road, the road of the Plumas Lumber Company. I went with Mr. Johnson to the District Attorney's office and was there a portion of the time while Mr. Johnson was giving him the facts concerning the matter, but I wasn't there all the time. I wasn't there the full time and personally don't know who prepared the complaint, but the complaint was afterwards prepared, but from the facts as given to me by Mr. Johnson and looking up the law, I did advise him that he had an action against Mr. Vernon for the injury, or attempted destruction of his property, not of Mr. Johnson's, but of the Plumas Lumber Company, I believe, or Mr. Johnson, under his timber sale."
On cross-examination, after testifying that he had threatened to arrest the plaintiff, the witness I.M. Johnson further testified: "Q. You knew that he had been mining in that vicinity before? A. Yes, sir. I had seen him working there. Q. In that immediate vicinity, when you built your road this year, you knew that he had been working in that canyon for years? A. Yes, sir. I did. Q. What did you mean, Mr. Johnson, when you told him if he turned water into that canyon that you would take him to Quincy? A. Simply that I would arrest him for interfering. Q. Now, you had your mind made up from the time you had this visit from Mr. Vernon in your office, prior to any arrest at all, that the minute that he turned any water through to mine with, you were going to have him pinched, weren't you? A. Yes, sir. . . . Q. What was your motive and reason for instituting both of these criminal prosecutions against Mr. Vernon? A. For protection to our business. We either had to close or stop Mr. Vernon, one or *125 the other. Q. Now, then, you testified on direct examination, I think, that the reason you had Mr. Vernon arrested was because you wanted it as a protection to your business, is that right? A. Yes, sir."
There are other portions of the testimony referred to by the counsel for the respective parties, but we think the foregoing is sufficient to justify the trial court in reaching its conclusion in this case, and clearly sets forth that every element of defense tendered in this cause rested upon disputed facts, and, therefore, that the conclusion of the trial court upon such facts is conclusive here. There is sufficient testimony in the transcript, as set forth, to support the findings of the trial court, even though there is testimony from which the court might have come to a different conclusion. The transcript further shows that the witness Johnson was unable at the time of the trial to detail what facts he had stated either to Mr. Kerr or the district attorney, and the only evidence in relation thereto is such as hereinbefore set forth, which consisted simply of conclusions by the witness Johnson that he had stated all the facts and had honestly stated them and had an honest belief, etc. Whether such facts were all stated or honestly stated, or whether the manager of the plaintiff had such honest belief were matters for the trial court to determine upon conflicting testimony, and being determined adversely to the appellant, cannot be otherwise determined here. The evidence here set forth is that most favorable to the appellant, and yet we think it clearly sufficient to justify the court in concluding that there was no probable cause. When thoroughly considered, we think the trial court had the right to conclude that the appellant was advised simply as to its civil rights and that the criminality of any acts on the part of the plaintiff were not controlling factors. As stated by the manager of the defendant, the arrest was "for protection of our business." To state it another way, it was the substitution of a criminal prosecution instead of a civil action because that method of procedure would more quickly stop the plaintiff's mining operations. All these matters which the trial court sitting without a jury was entitled to take into consideration we think answers all that the law demands in actions such as the one at bar. In *126 Burke v. Watts,
All these necessary facts, as herein stated, being found adversely to the appellant upon conflicting testimony, establish the defendant's liability upon the two causes of action charging malicious prosecutions.
[4] During the course of the trial the appellant sought to introduce evidence that the Forestry Service of the United States had advised the defendant that the rights of the defendant in the premises predominated; that this information was founded upon certain decisions of the federal courts of the United States to the effect that the mere location of a mining claim gives to the person locating the same no title to the timber thereon, etc. This testimony was excluded and the ruling of the court is assigned as error. The reasons given by the court in excluding the testimony are sufficient and need no elaboration: "I will sustain the objection. This ruling is based upon the fact that any advice concerning the civil or equitable rights of the parties . . . would have no bearing whatever in a criminal action."
[5] It is further alleged that there was a misjoinder of actions. This objection, however, was not taken in the *127
manner provided by the Code of Civil Procedure and hence is not available here. (Sec. 434, Code Civ. Proc.; Fellows v. City ofLos Angeles,
[6] We do not find any merit in the contention of the appellant that double awards have been made herein. As we have shown, the allegation of false imprisonment contained in the plaintiff's complaint and in the testimony set forth in the transcript show two distinct arrests without warrants and imprisonment following each of said arrests and thereafter two other distinct arrests upon the issuing of warrants. The damages claimed, found, and allowed by the court were for the imprisonments following the arrests made without warrants and therefore had nothing to do with the causes of action culminating in the charges of malicious prosecutions. The prosecutions were based upon complaints and warrants and were separate and distinct from the previous false imprisonments; that they followed each other in successive events does not in anywise merge the wrongs inflicted or take away from the plaintiff the right to recover damages for both of the periods when he was falsely incarcerated, nor to recover damages for the malicious prosecutions which were thereafter instituted by the subsequent filing of complaints, issuance of warrants, and following arrests.
[7] It is finally urged that the awards allowed by the trial court are excessive. Had the plaintiff been found guilty of the charges alleged against him, he might have been incarcerated in the county jail for a period not exceeding six months or by a fine not exceeding the sum of $500 or both. We think the trial court was justified in taking into consideration such matters in measuring the culpability of the intent of the defendant's agents and what injuries they were attempting to inflict upon the plaintiff.
In Scott v. Times-Mirror Co.,
The judgment and order of the trial court are hereby affirmed.
Finch, P.J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 30, 1925. *129