Hanna v. Raphael Weill & Co.

NOURSE, P. J.

In her action for damages for false imprisonment plaintiff alleged and proved that after purchasing a pair of gloves at a counter in the “White House” she asked the clerk for a shopping bag to carry an extra sweater she had worn on entering the store. Having placed the sweater and the gloves in this bag with her sales slip she left the store and was followed for some distance along the public sidewalk by a woman detective and a special officer who told plaintiff he was a policeman. One of these took plaintiff by the arm and the special officer told her: “You go back with us. It will be better for you if you do.” They took her back to the store where she was immediately released and told the whole incident was a mistake. At the close of plaintiff’s case the trial was taken from the jury when defendants’ motion for a nonsuit was granted.

The only question on this appeal is whether appellant proved a prima facie ease of false imprisonment which should have gone to the jury.

Section 236 of the Penal Code defines false imprisonment as “the unlawful violation of the personal liberty of another.” The essential thing in false imprisonment is the restraint of the person.

(Vandiveer

v.

Charters,

110 Cal.App. 347, 355 [294 P. 440]; Ware v. Dunn, 80 Cal.App.2d 936, 943 [183 P.2d 128].) This essential element was proved by competent evidence. The appellant went further and gave proof that the restraint was not made upon a complaint or warrant. And, though force is not a necessary element, appellant tendered evidence that a sufficient amount of force was used by the two employees to convince her that resistance would be unavailing.

Whatever may be written about the burden of proof it is sufficient here to say that, on a motion for nonsuit, the evidence of what occurred on the public street, the return of appellant to the office of respondent White, and his immediate statement to her that: " This is all a bad mistake ’ ’ would have supported an inference which the jury might have drawn that the arrest and detention was without legal authority and unjustified. Thus, as to the respondents White and Methot, it was necessary to combat that inference by proof satisfactory to the jury.

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