Sebring v. Harris

HALL, J.

This is an appeal from an order denying defendant’s motion for a new trial.

The action was brought to recover damages for the wrongful and false arrest and imprisonment of plaintiff caused and procured by defendant.

Among other things it is alleged in the complaint “That on the 22nd day of June, 1907, at the city and county of San Francisco, state of California, the defendant caused the plaintiff to be arrested upon a pretended charge of larceny.”

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Defendant in his answer denied that he “caused the plaintiff to be arrested upon a pretended charge of larceny, or upon any other charge.”

At the close of plaintiff’s case defendant moved the court for a nonsuit, which motion was by the court denied. This ruling of the court is the first matter urged by appellant as ground for the reversal of the order denying his motion for a new trial.

The only contention of appellant upon this point is that the evidence tends to show that the defendant caused plaintiff’s arrest upon a charge of disturbing the peace instead of upon a charge of larceny, and which appellant contends presented a case of fatal variance between the proof and allegations of the complaint. As will appear later on in this opinion we do not think the variance at all material. But it is a sufficient answer to appellant’s contention to say that the motion for a nonsuit was not made upon any such ground. The motion as it appears in the record is as follows:

“I desire to make the motion for nonsuit on the ground that they have not established any cause of action at all. They have not shown any connection with Mr. Harris. Also they must show that there was a want of probable cause, and on the ground that the testimony so far introduced by the plaintiff does not substantiate anything at all connecting the defendant with the matter.”

It is perfectly clear that appellant’s motion was directed to a failure to prove that defendant caused the arrest of plaintiff at all, and to a failure to prove want of probable cause for the arrest.

As to the first of these grounds the evidence in the record establishes beyond question that the defendant did cause the arrest of plaintiff. It is not now contended to the contrary.