I dissent. False imprisonment is the unlawful restraint by one person of the physical liberty of another. (22 Am. Jur., False Imprisonment, sec. 2.) When such restraint occurs in more than one county by one continuous act, I think venue may be in either county under section 9094, Revised Codes.
I agree with the statement made by the supreme court of Idaho in the case of Haffner v. United States F. G. Co.,35 Idaho 517, 207 P. 716. In that case the arrest was made in *Page 550 Bannock county and plaintiff was taken to Power county and placed in jail. The action was brought in Bannock county. Motion was made to have the action transferred to Power county. The Idaho statute is identical with our section 9094, Revised Codes. The court in discussing the question as to where the cause of action, or some part thereof, arose, had this to say:
"The arrest took place in Bannock county, and, the cause of action being based in part upon the arrest, it is thus clear that part of it arose in Bannock county. The cause of action is based in part also upon the imprisonment which took place in Power county. It appears, therefore, that part of it arose in Power county."
Again that court said: "Since the arrest occurred in Bannock county, and the imprisonment in Power county, some part of the second cause of action arose in each of these counties. Under C.S. para. 6662, the venue could properly be laid in either county."
It may be suggested that the Idaho court went further than necessary to a decision of the case. It might have done what this court did in Enos v. American Surety Co., 95 Mont. 588,28 P.2d 197, and held that since a part of the cause of action arose in the county where the action was filed, it was unnecessary to determine whether the whole of it arose there. The Idaho court, whether necessary to the decision or not, made the statements above noted. I think they correctly announce the law. To the same effect is Ellis v. Baker, 62 A.D. 542,71 N Y Supp. 88. In Shugart v. Cruise, 260 Fed. 36, plaintiff was arrested in Franklin county and was imprisoned in Henry county. The same contention was there made as here. The action was commenced in Henry county. The contention was made that the court was without jurisdiction because defendant could not be sued in Henry county for a trespass committed in Franklin county. The court in holding otherwise pointed out that the statute involved provided: "An action may be brought in any county or corporation wherein the cause of action, or any part thereof, arose, although none of the defendants *Page 551 reside therein." The court held that the action was properly instituted in Henry county where the imprisonment took place, "inasmuch as a part of the cause of action arose in Henry county."
If the reasoning employed in the majority opinion is correct, then section 9094 is meaningless so far as it fixes venue in the county where "part of" the cause of action arises. The majority opinion in effect holds that in every case the entire cause of action must arise at one time and in one place, and there never could be a situation where section 9094 could have application so far as it provides for the venue in the county where "part of the cause of action arose."
I think that the term "cause of action, or some part thereof," as used in section 9094, means the combination of facts constituting the reason why the plaintiff felt aggrieved and why he instituted the action. In effect, in this case, he states that the reason why he felt aggrieved and why he instituted the action is because he was falsely and unlawfully imprisoned for a stated number of hours. When part of that time was in one county and part in another, I think, a part of the cause of action arose in each county.
It is my opinion that the court erred in sustaining the motion for change of venue.