Foerst v. Hobro

TUTTLE, J.,

pro

tem.

This was an action to recover damages for an alleged false imprisonment, brought against two inspectors of the department of health of the city and county of San Francisco, one of whom was chief inspector. Demurrers to the original and the first amended complaint were sustained with leave to amend; and the second amended complaint being defective also, the demurrer thereto was sustained without leave to amend. Judgment in favor of defendants was entered accordingly, and plaintiff appeals therefrom.

The complaint alleged that the inspector, acting under instructions from and at the direction of his chief, swore to a criminal complaint against plaintiff, pursuant to which she was arrested by a police officer and imprisoned in the city prison for several

hours;

and that as a result of such arrest and imprisonment she suffered damages on account of humiliation, mental shock and physical injuries.

As will appear from the second amended complaint, and from plaintiff’s brief on appeal, her claim that the imprisonment was illegal is based solely upon the assertion that the complaint in the criminal proceeding did not state a public offense. She did not set forth a copy of the criminal complaint, however, nor any portion thereof, nor the substance of any of its allegations; nor did she allege generally or at all wherein the said criminal complaint was defective or failed to state a public

offense;

in fact she did not even indicate the nature of the criminal charge placed against her. AVith respect thereto, both on this appeal and before the trial court, she was chosen to stand on the single allegation contained in paragraph VI of the second amended

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complaint: “That the said arrest was illegal and unlawful by reason of the fact that the aforesaid [criminal] complaint did not state a public offense.”

Respondents contend that the foregoing allegation is but a conclusion of law, and that therefore, since no facts are pleaded which show the imprisonment to have been unlawful, no cause of action is stated. The authorities fully sustain such contention. As held in the case of