Opinion
Harry L. Hellerstein, Aurora, for plaintiff-appellant.
Yegge, Hall & Evans, Wesley H. Doan, Denver, for defendants-appellees R. J. Cochran and R. D. Berry.
DWYER, Judge.
This is an action for false arrest brought by plaintiff-appellant, Harold E. Lofton, against two police officers of the City and County of Denver. The officers brought a third-party action against the City for indemnification upon any judgment which might be entered against them. The case was tried to a jury. At the close of all the evidence, the court directed a verdict in favor of the defendant officers, and plaintiff has appealed.
The only issue on appeal is whether the court properly directed a verdict in favor of the defendants.
On December 20, 1968, the district court issued a temporary restraining order in a divorce action which Lofton's wife had filed against him. The order, Inter alia, restrained Lofton from 'talking to, communicating with or otherwise molesting' his wife. On December 21, 1968, the defendant officers were sent, at the request of Lofton's wife, to Lofton's residence in Denver, Colorado. When the officers arrived at approximately 9:30 p.m., Lofton and his wife were both at the house. Mrs. Lofton told the officers that Lofton had been 'pushing her around' and exhibited to them a certified copy of the restraining order. The officers examined the order, advised Lofton concerning it, told him that he was in violation of the order, and asked him to leave the premises. The officers repeated this request five or six times, but Lofton refused to leave. Finally, the officers informed Lofton that if he did not leave he would be arrested. Lofton again refused to leave, and the officers arrested him and placed him in jail. The arrest occurred late on a Saturday evening, and Lofton was held in jail until the following Monday morning when he was taken before the court which had entered the order and was subsequently released.
The officers, in arresting Lofton, were acting pursuant to statutory authority. 1965 Perm.Supp., C.R.S. 1963, 46--1--12, provides:
'Whenever there is exhibited to any duly authorized sheriff or police officer a certified copy of a restraining order issued by any district court in an action for divorce . . . requiring the doing or refraining from doing of any other act stated therein . . . and the person named commits an obvious violation of its terms in the presence of any duly authorized sheriff or police officer, then it shall be the duty of the sheriff or police officer to arrest the violator and take him immediately before the court issuing the restraining order or if that court is not in session then to the nearest jail until the convening of its next session, to await further action for the violation.'
A police officer making an arrest pursuant to this statute is not civilly liable to the person arrested if the officer has probable cause based upon reasonable grounds to believe that the person arrested has committed a violation of the restraining order in his presence.
In Dillon & Sons v. Carrington, 169 Colo. 242, 455 P.2d 201, the Supreme Court reversed a judgment in favor of the plaintiff following a jury verdict in an action for false imprisonment. In holding that the trial court erred in failing to direct a verdict in favor of the defendant, the court stated:
'Our analysis of the evidence bearing on this particular issue compels us to conclude that as a matter of law the defendant's agents acted in good faith and upon probable cause based upon reasonable grounds and that the jury should have been so instructed. As concerns this particular matter, this is apparently a case of first impression. However, in malicious prosecution cases we have repeatedly held that where the conceded or substantially undisputed facts and circumstances under which the prosecution was carried on show probable cause for the prosecution the court should take the responsibility for holding--as a matter of law--that there was probable cause for the prosecution and should in such instance direct a verdict for the defendant. See Konas v. Red Owl, 158 Colo. 29, 404 P.2d 546; Montgomery Ward & Co. v. Pherson, 129 Colo. 502, 272 P.2d 643; and Gurley v. Tomkins, 17 Colo. 437, 30 P.2d 344.'
In the present case, the evidence on the issue of probable cause is not in dispute. A restraining order was exhibited to the officers, who explained it to Lofton. This order restrained Lofton from talking to, communicating with, or otherwise molesting his wife. Lofton, aware of the contents of the order, was obviously violating it, and the violation was committed in the presence of the officers. Under these circumstances, the trial court properly directed a verdict in favor of the defendant officers.
Judgment affirmed.
COYTE and SMITH, JJ., concur.