Baer v. Chambers

• Decision Date: 07 March 1912
• Citation: 67 Wash. 357,121 P. 843
• Parties: BAER v. CHAMBERS.
• Court: Washington Supreme Court

121 P. 843

67 Wash. 357

BAER v. CHAMBERS.

Supreme Court of Washington

March 7, 1912

Department 1. Appeal from Superior Court, Thurston County; John R Mitchell, Judge.

Action by John D. Baer against David Chambers. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

Bigelow & Manier, for appellant.

E. N Steele and Troy & Sturdevant, for respondent.

PARKER J.

The plaintiff commenced this action in the superior court for Thurston county to recover damages which, he alleges resulted from the malicious prosecution of a criminal action against him by the defendant. A trial before the court and a jury resulted in a verdict and judgment against the defendant for the sum of $850, from which he has appealed.

In August, 1910, appellant made complaint, in writing, under oath before a justice of the peace for Thurston county charging respondent with the crime of feloniously assaulting him. A warrant of arrest was thereupon issued accordingly and placed in the hands of the sheriff of Thurston county, who arrested respondent in obedience thereto and held him in custody in the county jail for the period of three days. A preliminary hearing upon this criminal charge was then held before the justice as a committing magistrate, when respondent was discharged, and his further prosecution abandoned.

It is first contended in behalf of appellant that the trial court erred in denying his motion for a directed verdict in his favor. The only argument made in support of this motion which we deem it necessary to notice is that the facts proven were such as to call for a decision of the court, as a matter of law, that appellant had, prior to the making of the complaint before the justice, fully and fairly stated to the prosecuting attorney of Thurston county all of the facts within his knowledge bearing upon the question of respondent's guilt, and had thereupon been advised by the prosecuting attorney that there was cause for believing respondent guilty and to warrant his prosecution for the crime which was thereafter charged against him by appellant. It is conceded that appellant communicated certain facts to the prosecuting attorney which, standing alone, would tend strongly to show respondent's guilt, and that the prosecuting attorney based his advice solely upon the facts so communicated. There were, however, other facts which the jury might well believe from the evidence in this case were within the knowledge of appellant at the time he sought the advice of the prosecuting attorney and made complaint before the justice, which facts tended to show that respondent, at the time of the alleged assault, was defending his own home from intrusion by appellant, and which facts, if true, would constitute a perfect defense to the charge made by appellant against respondent. Indeed, it appears by the prosecuting attorney's own testimony that he would have advised appellant against the prosecution, had these facts been communicated to him by appellant. Counsel for appellant rely upon the decision of this court in Simmons v. Gardner, 46 Wash. 282, 89 P. 887, in support of their contention that the question of reasonable cause should have been decided, as a matter of law, in favor of the appellant by the court, because of the advice of the prosecuting attorney. In that case, however, there seems to have been no question but that all of the facts known to the prosecuting witness were communicated to the prosecuting attorney, who advised the prosecution therein involved. Touching the question of when such communication to the prosecuting attorney and his advice thereon may enable the court, in a malicious prosecution case, to determine the question of probable cause as a matter of law, the court, at page 287 of 46 Wash., at page 888 of 89 Pac., said: 'It is undoubtedly the law that if any issue of fact exists, under all the evidence, as to whether the appellants did fully and truthfully communicate to the attorneys consulted all the facts and circumstances within their knowledge, then such issue of fact must be submitted to the jury with proper instructions from the court as to what will constitute probable cause, and the existence or nonexistence of probable cause must then be determined by the jury. Voss v. Bender, 32 Wash. 566, 73 P. 697. On the other hand, if it appears that the statements as to the attorneys were truthful, full, and complete, giving all material facts and circumstances within the knowledge or information of appellants, then the existence or nonexistence of probable cause becomes a question of law for the court, which should not be submitted to the jury.' Now, in the case before us, it is neither admitted nor proven beyond controversy that appellant fully and truthfully communicated all the facts within his knowledge to the prosecuting attorney bearing upon the question of respondent's guilt of the crime for which appellant sought to have him prosecuted. But, on the contrary, there is ample evidence to warrant the jury in believing that appellant withheld from the prosecuting attorney, without excuse, material facts which would have shown respondent's innocence of the charge. We think it follows that the question of reasonable cause could not have been determined by the court as a matter of law, because that question depended upon facts in dispute, and was therefore for the jury's determination under proper instructions.

Appellant was called as a witness in behalf of respondent, and, over the objections of his counsel, was required to give testimony relative to the amount of property possessed by him, resulting in the jury learning that he was a man of considerable means. This is assigned as error prejudicial to appellant. The decisions of the courts upon the question of the admissibility of evidence of this nature in this class of cases are apparently in serious conflict. Such evidence seems to be held admissible in most of the states where punitive or exemplary damages are recoverable when resulting from gross negligence or malicious acts; that doctrine being generally assigned as a ground for admitting such evidence. In 26 Cyc. 103, the general rule is stated in harmony with such authorities, as follows: 'The action of malicious prosecuting being one in which exemplary damages are allowable, evidence of defendant's pecuniary circumstances may be received.' This class of evidence, however, is not admissible in all jurisdictions where punitive damages are recoverable. In Southern Car & Foundry Co. v. Adams, 131 Ala. 147, 32 So. 503, the Supreme Court of that state, having under consideration the admissibility of evidence of this nature in a malicious prosecution action, makes some very pertinent observations at page 159 of 131 Ala., at page 507 of 32 South., as follows: 'The question is not new in this court. It arose, apparently, for the first time, in the case of Ware v. Cartledge, 24 Ala. 622, , where it was held that evidence of wealth was not admissible for the plaintiff in an action of slander, and it is admitted that the same rule, if sound, is applicable to a case of malicious prosecution. The court in that case say: 'We are aware that in many actions for torts, in which vindictive damages are allowed to be given by the jury, proof of the value of defendant's estate has been allowed to go to the jury, both in England and the United States; but this rule is by no means universal. Conflicting authorities on the subject are to be found in English and American books. * * * It would seem that if such proof is allowable, in order to aggravate the damages in such cases, when the defendant is wealthy, common justice would require that a converse rule should prevail in the case of poor defendants, and they should be allowed to give their poverty in evidence to mitigate the damages. Yet nearly all the books declare that this is not the case, and common sense revolts at the idea of its adoption. For sad would be the fate of that country whose laws conceded to the insolvent bully, seducer, or slanderer the privilege of perpetrating his wrongs, with comparative impunity, under the assurance that, when sued for his practices, the damages would be graduated to his present ability to pay them, and consequently would be merely nominal. No sound principle of law tolerates such a practice.'' See, also, Brown v. Smallwood, 86 A.D. 76, 83 N.Y.S. 415. It is worthy of note that in both of those states such evidence is held inadmissible, even though punitive damages are there recoverable. No decision has come to our attention holding such evidence admissible in states where the doctrine of punitive damages does not prevail. This court, in the early case of Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 25 P. 1072, 11 L. R. A. 689, 26 Am. St. Rep. 842, repudiated the doctrine of punitive damages as unsound in principle. The views there expressed have been consistently adhered to ever since. Woodhouse v. Powles, 43 Wash. 617, 622, 86 P. 1063, 8 L. R. A. (N. S.) 783, 117 Am. St. Rep. 1079, 11 Ann. Cas....