APPEAL from a judgment of the Superior Court of the County of Apache. Levi S. Udall, Judge. Judgment reversed and cause remanded with instructions.
Mr. Earl Platt, Appellant, in pro. per., and Mr. Stanley Jerman, for Appellant.
Mr. Dodd L. Greer and Mr. Gilbert E. Greer, for Appellees.
[50 Ariz. 159] ROSS, J.
This is an action for damages for unlawful arrest and false imprisonment. A. Hartley Greenwood, sheriff of Apache county, on September 23, 1935, between 6:30 and 7:00 o'clock in the evening, without a warrant, arrested the plaintiff, Earl Platt, on the streets of St. Johns and took him to and locked him in the county jail, where he remained for some three hours, when he was released by the sheriff without any charge being laid against him. The United [50 Ariz. 160] States Fidelity & Guaranty Company is the sheriff's official bondsman.
The defense is that plaintiff was, at the time he arrested him, interfering with the sheriff in an attempt to arrest one Spencer Nordyke, who was committing, or attempting to commit, a public offense.
The case was tried to a jury and resulted in a verdict and judgment for defendants. The plaintiff has appealed assigning several grounds therefor.
The facts, stated most strongly against the plaintiff and in favor of defendants, are as follows: Tom Davis, the proprietor of a public place in St. Johns, known as the Apache Cafe, where both intoxicating liquors and food were served, called the defendant sheriff over the telephone, stating that there was some difficulty or trouble in the cafe. When the sheriff arrived at the cafe, he found that one Spencer Balcomb and Spencer Nordyke were under the influence of intoxicating liquors and had been quarreling and threatening to fight each other. It seems that the sheriff and others were able to induce Balcomb to leave the cafe and to go to his country home some miles away. Nordyke, although requested by the sheriff to get off the streets and go home, refused or neglected to do so. Someone telephoned plaintiff, who was an acquaintance of Nordyke's and an old-time friend, that the latter was having some trouble, whereupon he went from his home to the Apache Cafe to look after Nordyke. At the time the defendant arrested the plaintiff the latter and Nordyke were standing on the street, between the Apache Cafe and the Jones restaurant and pool hall, and the defendant, who was motoring along the street, saw them. He stopped and went to where plaintiff and Nordyke were for the purpose of arresting Nordyke, he says. When asked why he was intending to arrest Nordyke, he said:
[50 Ariz. 161] "He was drunk and was disturbing the peace talking loudly and had caused this trouble in the Apache Cafe just prior to this time."
He added that he was talking loud enough so that passers-by could hear him. When he reached plaintiff and Nordyke, according to his statement he did this:
"As I walked up to them I got hold of Nordyke's coat collar, and told him that I had given him several chances to go home and get off the street, that you are drunk and that I did not want any more trouble and that it was about time that I was doing something."
Plaintiff protested the arrest of Nordyke, insisted that he was doing no wrong nor anything for which he should be arrested, and told defendant that he would look after him and take care of him. Plaintiff did not use any physical force but, as defendant said,
"he just kept on arguing and getting between me and my man that I was after.... Just talking ...