128 Wash. 55 | Wash. | 1924
Lead Opinion
Several suits at law had been instituted by the city of Cheney against respondents, and more had been threatened or promised by appellant Rolfe, while city mayor, against them, when, on a certain day, persons acting for the city, as contended by appellants, undertook to haul some sand away from premises which had been decreed to belong to the city. Respondents lived on or near the premises which had been in dispute between them and the city, and on the day in question, Mrs. Wood verbally protested against hauling away the sand. An altercation occurred between her and the men, who were in charge of one Hensinger, who seems to have been deputy marshal of Cheney, also an employee of Rolfé and Webb, and also a deputy sheriff of Spokane county. The sand probably belonged to the city and not to respondents, as they claim. The altercation resulted in Hensinger going to the telephone, as testified to by Mrs. Wood, calling up Rolfe, and resulted in Rolfe instructing Hensinger to arrest Mrs. Wood if she said a word. Hensinger accordingly arrested Mrs. Wood, took her into Cheney, and there a complaint was sworn out against her by Webb, charging her with “disturbing the peace and trespass.” Upon the complaint being filed, she was not incarcerated, but was released upon her own recognizance at the instruction of appellant Rolfe and went her way. Two days afterwards she was discharged from custody and the complaint dismissed, although, according to her testimony, over her protest, she demanding a trial.
Subsequently, she and her husband brought this action against Rolfe and Webb, as copartners doing
Upon a trial to the court and a jury, the jury exonerated the defendant Hensinger, but awarded a verdict in favor of respondents against the appellants in the sum of $500.
Appellants strenuously contend that the evidence in the case warranted no finding of malice or of want of probable cause, and that the jury should have been so instructed, or that the court should have granted their motion for nonsuit, their motion for judgment n. o. v., or their motion for a new trial.
While the evidence is conflicting, there is ample evidence introduced on behalf of respondents to show that appellant Kolfe had threatened more litigation for respondents, had threatened to put them to great expense by compelling them to defend litigation, which culminated in the arrest complained of. There was, therefore, sufficient evidence of actual malice on the
Appellants contend, however, that whatever Rolfe himself or his associate did was done on behalf of and as the act of the city of Cheney, and that therefore there was no malice or unwarranted arrest brought about by appellants.
The city could not be bound by its mayor’s act in maliciously instituting and prosecuting a criminal case without probable cause, for that would be the individual act of the person so causing such prosecution, and not the act of the city. Doyle v. City of Sandpoint, 18 Idaho 654, 112 Pac. 204, Ann Cas. 1912A 210, 32 L. R. A. (N. S.) 34; City of Chicago v. Williams, 182 Ill. 135, 55 N. E. 123.
In any event, if the city could be held liable for such unjustifiable prosecution, the city and Rolfe could both be held liable, and the injured party could sue either one or both, separately or jointly. Mitchell v. Hughes, 104 Wash. 231, 176 Pac. 26.
It is further contended that the release of Hensinger by the jury had the effect of releasing his co-defendants. Hensinger was the person who made the arrest, but the evidence showed on behalf of respondents that Hensinger acted merely at the direction and under the authority of Rolfe, and while he might have been held liable with his co-defendants as one of the conspirators, his release would not necessarily have the effect of releasing the other defendants, who were shown to be liable for the tort. 6 A. & E. Ency. Law (2d ed.), 872. The injured party may pursue all or any number jointly less than the whole number committing the tort. Mitchell v. Hughes, supra.
Exceptions were taken to several instructions and portions of instructions by appellants, which are set
Many of the questions argued by appellants under their assignments are answered by our decision in Mitchell v. Hughes, supra.
Appellants also complain of the size of the verdict. Although an examination of the record shows that there was apparently little mental suffering, humiliation, disgrace, and no pain of body suffered by Mrs. Wood, and no evidence of injury to her credit, the award of $500, although extremely large, does not appear to be so excessive as to give evidence of passion or prejudice on the part of the jury. The trial court having permitted it to stand, we shall not interfere with it.
Finding no error, the judgment is affirmed.
Dissenting Opinion
(dissenting) — Nominal damages are all that the respondents are entitled to if a judgment against the appellants is to be allowed to stand.
