Kalish v. White

KERRIGAN, J.

This is an action for damages for false imprisonment, brought by the plaintiff against D. A. White, chief of the police department of San Francisco, and William Minehan, a detective sergeant in the department.

Upon plaintiff resting his case a motion for a nonsuit as to defendant White was granted, and at the conclusion of the testimony of both sides the court of its own motion instructed the jury to return a verdict for defendant Minehan, which the jury did. This is an appeal by plaintiff from the judgment entered on the instructed verdict.

The circumstances of the plaintiff’s arrest and imprisonment were as follows: One Samuel Kalish, a person other than plaintiff, had embezzled the sum of eight hundred dollars belonging to one Mrs. Lydia McCarthy, and shortly thereafter disappeared, whereupon Mrs. McCarthy reported the matter to the police department of San Francisco, with the result that a warrant was issued for the arrest of the offender. About ten months prior to the embezzlement Minehan had known the plaintiff in San Francisco, and the execution of the process was placed in his hands. He made a diligent search for the plaintiff, and learned that he had recently vacated his room, leaving some of his clothes behind, and that prior to leaving it had been his custom to get his mail at the postoffice. The search in San Francisco proving fruitless, and it having been learned from the complaining witness that the accused had brothers in New York and Chicago, Minehan advised her to write decoy letters addressed to Samuel Kalish at both those cities. This she did, and received 'a reply from the plaintiff signed “Sam Kalish.’’ Thereupon the case was presented to the grand jury and an indictment was returned against the plaintiff charging him with embezzlement; extradition proceedings were inaugurated, and Minehan proceeded to New York, where he found the plaintiff in the custody of the police department awaiting process for his removal to California. Plaintiff protested his innocence, but Minehan proceeded to execute his process. It is also to be noted that the record

[606]

discloses that while plaintiff did not precisely answer the description furnished by the complaining witness of the man who had embezzled her money as to age or ias to a noticeable scar on one of his hands, still by inference it appears that he measured up to the furnished description as far as build, weight, complexion, and nativity were concerned. Upon arriving -in San Francisco Minehan immediately made his return on the warrant, and plaintiff was incarcerated. Still protesting his innocence, he was confronted by the complaining witness who, after two visits to the prison, refused to identify him as the thief. Notwithstanding this the plaintiff was kept in confinement for ¡a period of ten days, when he was arraigned on the indictment, at which time, the complaining witness not appearing, the court received evidence as to the identity of the plaintiff and ordered his release from custody.