Dussault v. Condon

HANSON, J. pro tem.

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This is an action for false arrest and false imprisonment brought by two minor plaintiffs by

[695]

their father as guardian

ad litem

against two police officers of the City of San Mateo. After a trial by jury a verdict was returned in favor of both defendants. The plaintiffs appeal alone from the judgment entered on the verdict in favor of Condon.

The errors assigned by the appellant’s opening brief are three in number, but in the closing brief these are reduced to one, in effect, as the appellants say: “This case boils down to the question whether the offense in this case was committed ‘in the presence’ of the police officer. If it was not, he had no right to make the arrest.”

The facts necessary to be considered in reaching a conclusion on the errors assigned are as follows:

On August 4, 1956, the two minors (aged 15 and 14) with their father were in attendance at the Bay Meadows Race Track where the father had entered two horses for racing. He left the boys at the docker’s booth on the barn side of the track while he himself went to the grandstand area. The inside of the booth was about 6 by 15 feet. It stood raised above the ground about 5 feet to the bottom of its floor. There are windows on three sides and a door opening to stairs which connect it to the ground on the fourth side.

On the day in question the defendant Condon was on duty patrolling the premises as a police officer. While thus engaged, a person unknown by name to him complained that there were three hoodlums cursing and raising a rumpus in the docker’s booth. As Condon proceeded on his way to the booth another man and his wife stopped to tell him that three boys in the booth were using loud profanity and when the man asked them to stop he was greeted with “Go to hell.” It is undisputed that women and children were in the immediate vicinity at the racing rail. As Condon neared the booth he heard yelling, loud talking, and profanity emanating from the booth and through the door he observed a boy poised to throw a rock and another boy was heard to say “Damn you, put it down.” The rock was thrown and instantly followed by a profane remark. Condon then called to the occupants of the booth to come down and a boy by the name of Gary Valine did so; the two Dussault minors did not, but instead “talked back” to the officer. On the officer’s statement that if they did not come down he would go up after them they came down. When he ordered all three boys to leave the premises the Valine boy left but the Dussault boys refused. As a result he advised