I concur with the result reached by Justice MOFFAT.
Section 104-44-22, U.C.A. 1943, provides that in any action brought against any person charged with the duty of enforcement of the criminal laws, "when such action arises out of, or in the course of, the performance of his duty," the plaintiff shall file a written undertaking. Could an action arise out of the performance of his duty by a police officer? It seems to me that the Legislature intended that the actions of the police officer, for which he is sued, must arise out of, or be in the course of the performance of his duties. Both parties seem to have so construed the statute.
In this case plaintiff did not allege that the defendants were police officers, nor that their actions arose out of, or in the course of the performance of their duty, so the defendants alleged those facts in affidavits and made a motion to dismiss the action, because the plaintiff had failed to file *Page 97 an undertaking provided for in the above statute. The statute requires the undertaking to be filed when the necessary facts exist and does not limit it to cases where the plaintiff's complaint discloses the necessary facts. It was therefore proper to raise this question upon motion and affidavits.
The only questions raised on these motions were: (1) Were the defendants charged with the enforcement of the criminal laws? and (2) were the acts of defendants, of which plaintiff complains, committed in the course, or arose out of, the performance of their duty in enforcement of the criminal laws? If the answers to each of these questions are in the affirmative then this action must be dismissed. Plaintiff concedes that the defendants were officers charged with the enforcement of the criminal laws, so the answer to the second question will be determinative of this case.
I believe the affidavits, although somewhat in the nature of a conclusion, were sufficient to raise this issue, and I also believe that while the findings and the conclusions could have been separated better, yet this case should not be reversed on that ground. I cannot, however, agree that the facts disclosed by the evidence were sufficient to justify the decision. I am also of the opinion that the court erred in excluding evidence which had a material bearing on the issues in this case, and misconstrued the law applicable thereto.
We should bear in mind that the hearing on this motion was a final hearing, and not in any sense preliminary or interlocutory. The defendants, having alleged the facts, have the burden of proving them by a preponderance of the evidence. This being a law action, we will not determine the weight of the evidence, but there must be substantial evidence to support the findings of the court.
The defendants' evidence merely shows that they were police officers, and as such were instructed by their superior to make an investigation of the plaintiff, in connection with the writing of certain letters and with certain robberies, and that they made the arrest. They further testified that *Page 98 all the acts, alleged in the complaint, which they did, were done pursuant to and in furtherance of the instructions of their superior, and arose out of, or were in the course of the performance of their duty as such officers. The testimony on the matters stated in the last sentence were the bald conclusions of the witnesses, and no facts or circumstances in support thereof were given. In fact, the court expressly excluded such testimony. The mere fact that they were officers and were instructed to make an investigation of the plaintiff does not prove that the acts that they did were done in the course of the performance of their duty, nor does it prove that their acts arose out of the performance thereof. Nor is this shown by the conclusion to that effect. Such testimony may be admissable to show the purpose of the witnesses in committing the acts, still that question must be ultimately determined by the court from all of the facts and circumstances surrounding the commission of the acts in question. These facts not being disclosed, the evidence is insufficient to justify the decision.
The court seemed to conclude that as long as the defendants were officers, and purporting to act as such, no matter how far they went beyond their duty, still plaintiff was required under the statute to furnish an undertaking. Apparently on this theory, all the evidence of the facts and circumstances surrounding the acts complained of were excluded. The court stated that it was not interested in whether the defendants acted in good or bad faith, or with or without malice, or whether they acted reasonably. It intimated that it was immaterial even though they were merely "masquerading under the guise of police officers," and made the arrest knowing the plaintiff was guilty of no offense. If I have correctly interpreted the statute, it was necessary for the defendants to show either that they acted in the course of the performance of their duty as police officers, or if their acts did go beyond that course, still their acts must arise out of the performance of such duty. Otherwise *Page 99 the plaintiff was not required to furnish an undertaking.