I dissent.
The majority opinion is based upon several false assumptions as well as misstatements of both fact and law.
It appears to be conceded that the arrest of plaintiff, insofar as it was brought about by the acts and conduct of defendant, was unlawful. This must be conceded because an arrest can be made by a private person only,
“1. For a public offense committed or attempted in his presence.
“2. When the person arrested has committed a felony although not in his presence.
“3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.” (Pen. Code, § 837.)
The majority concedes that there was no basis for the arrest under any of the above provisions. But the majority seeks to justify the arrest on the ground “. . . that all defendant’s actions in connection with the citizen’s arrest of plaintiff were done, not of defendant’s own initiative, but at the request and pursuant to the direction of Sergeant Todd.” The majority opinion then states “It would be manifestly unfair to impose civil liability upon the private person for doing that which the law declares it a misdemeanor for him to refuse to do.” (Citing Pen. Code, § 150,* which makes it a misdemeanor for a man over 18 years of age to refuse an *699officer’s lawful request for aid in making an arrest.) The foregoing reasoning is so basically unsound that I have difficulty in believing that it would be accepted by any court as a basis for its decision.
Can it be said with any semblance of truth or fairness that when the defendant signed the document entitled “Citizen’s Arrest Form” and placed his hand upon plaintiff’s shoulder and stated, “I arrest you in the name of the law,” he was assisting an officer in making an arrest? The answer to this question is obvious, and is found in the positive declarations to the contrary in the majority opinion. The majority states the undisputed facts to be that plaintiff was first arrested by the South San Francisco police who held him in custody for the Burlingame police and delivered him to the Burlingame police who escorted him to the police station at Burlingame where he was detained in custody by the Burlingame police at the time defendant first saw him. In other words, defendant had nothing whatever to do with the arrest and detention of plaintiff up to that time except to report the information he received after returning to where his automobile had been damaged. For this court to attempt to apply the provisions of section 150 of the Penal Code to a situation of this character, and state, that if defendant had not complied with the request of the police to make a citizen’s arrest, he would have been guilty of a misdemeanor, is a rank distortion of the English language. From the plain wording of section 150 of the Penal Code the duty thereby imposed upon a citizen is to assist an officer in making a lawful arrest, when the officer so requests, and keeping the arrested person in custody. Here, plaintiff had already been arrested and was in custody. Whether the original arrest and custody were lawful at the time defendant purportedly made the unlawful citizen’s arrest is not an issue here. By no fair or reasonable interpretation of section 150 of the Penal Code can it be said that it was defendant’s duty to make an unlawful arrest at the request of an officer, especially where the person he was requested to arrest had already been arrested and was in custody.
The majority opinion is written under the false assumption that plaintiff was intoxicated at the time his car collided with that of defendant and at all times thereafter until the Burlingame police offered to release him sometime after midnight on the night of the arrest. I say this is a false assumption because the issue of intoxication was not raised until the *700day of the trial when defendant raised it by an amendment to his answer. Plaintiff denied that he was intoxicated and the trial court stated that if the issue of intoxication was to be considered, it would grant a continuance of the trial to give plaintiff an opportunity to meet the issue. No such continuance was granted and no finding on the issue was made. Although the majority opinion is replete with discussion on the alleged issue of intoxication, it holds that the issue was not determined by the trial court and cannot be determined by this court because of the conflict in the evidence.
The trial court found that defendant unlawfully and against his will arrested plaintiff; that the arrest by defendant was wrongful and without probable cause. Implicit in these findings is a finding that defendant made the arrest; that he was not assisting the officers to make the arrest nor had he been ordered by them to assist. Thus there is no basis for the majority’s assumption that defendant was assisting an officer in an arrest pursuant to section 150 of the Penal Code, supra, and hence not liable. The evidence supports that finding. Plaintiff was already in the custody of the police and at the police station. They needed no assistance to make an arrest. The statement signed by defendant said he made the arrest and requested the police assistance. Rather than defendant assisting the police, the police ashed defendant to sign a request that the police assist him, in making a citizen’s arrest and told defendant how to proceed. The police testified that none of them made the arrest. True, defendant testified he made the arrest only at the suggestion of the authorities but that merely created a conflict in the evidence on the question. The trial court resolved that conflict against defendant and this court is bound by it. A volunteer who does not act on the order of an officer in making an arrest is not relieved of liability. (Kirbie v. State, 5 Tex.App. 60.) It has been said: “Private persons who volunteer to assist officers of the law in the execution of process, without being commanded or requested to do so, and those who act ‘officiously’ in such matters, must do so at their peril; and they are bound to take care that the authority of the officer is sufficient and his precept regular. Such persons put their conduct upon their own judgment, and if that deceives them they are responsible for their acts and liable as trespassers.” (Newell on Malicious Prosecution, ch. IV, § 88.) Under facts far weaker than here present a person was held not to have been acting under section 150 of the Penal Code. (City of *701Long Beach v. Industrial Acc. Com., 4 Cal.2d 624 [51 P.2d 1089].)
It is clear that the trial court was justified in concluding that there was no assistance in an arrest; that defendant was not ordered to assist in an arrest; that there was no occasion for assistance in view of plaintiff’s being in custody at the police station. At most the police were merely suggesting that defendant make the arrest on his own responsibility, probably for the reason that he had initiated the endeavor to apprehend plaintiff and the officers knowing they had no basis for an arrest without a warrant did not want to accept the responsibility.
This is another ease where the majority of this court has, by specious reasoning and a disregard of settled rules of law, deprived a citizen of redress for an unlawful and unjustified infringement of his right to the enjoyment of life, liberty and the pursuit of happiness guaranteed by the Constitution and laws of this state. Again I say, that by the decision of the majority here, “The dignity and security of the individual citizen is subordinated to the whim and caprice of any fanatical overzealous person who chooses to point a finger of suspicion at him and thereby cause his arrest and imprisonment without written charge, complaint or warrant of arrest.” (See dissenting opinion, Turner v. Mellon, 41 Cal.2d 45, 49, 50 [257 P.2d 15].)
It has been the settled law of this state from time immemorial that when a citizen’s arrest is made, the burden is on the person making the arrest to show justification therefor (Sebring v. Harris, 20 Cal.App. 56 [128 P. 7].) Here it is conceded that the arrest was unlawful. This concession renders the defendant liable for all damages suffered by plaintiff as a proximate result of the arrest. This always has been and should continued to be the law of this state if we are to continue to maintain our American way of life.
I would affirm the judgment.
“ Every male person above 18 years of age who neglects or refuses to join the posse comitatus or power of the county, by neglecting or refusing to aid and assist in taking or arresting any person against whom there may be issued any process . . . being thereto lawfully required by any sheriff, deputy sheriff, coroner, constable, judge, or other officer concerned in the administration of justice, is punishable by fine of not less than fifty dollars (§50) nor more than one thousand dollars ($1,000).” (Pen. Code, § 150.)