Bertschinger v. Campbell

• Decision Date: 23 November 1917
• Docket Number: 14216.
• Citation: 99 Wash. 142,168 P. 977
• Parties: BERTSCHINGER v. CAMPBELL.
• Court: Washington Supreme Court

168 P. 977

99 Wash. 142

BERTSCHINGER v. CAMPBELL.

No. 14216.

Supreme Court of Washington

November 23, 1917

Department 1. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by A. Bertschinger against R.H. Campbell. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

J.N. Hart, George W. Wilson, and Wedmark & Grimm of Centralia, for appellant. Albers & Allen, of Chehalis, and M.A. Langhorne, and Hayden, Langhorne & Metzger, all of Tacoma, for respondent.

PARKER J.

The plaintiff, Bertschinger, seeks recovery of the sum of $1,025 alleged to have been unlawfully extorted from him by the defendant, Campbell, and also the sum of $125 as special damages incidental thereto. The cause proceeded to trial in the superior court for Lewis county, sitting with a jury resulting in a judgment of dismissal rendered by the court upon the motion of the defendant's counsel at the close of the plaintiff's evidence. The motion and judgment were rested upon the ground that the evidence introduced in the plaintiff's behalf was not sufficient to support any recovery against the defendant, in that it conclusively showed that appellant voluntarily paid the money to the defendant. From this disposition of the cause the plaintiff has appealed to this court.

Appellant is a physician practicing his profession in Portland, Or Respondent is a physician practicing his profession at Little Falls, in this state, some 70 miles distant from Portland. On December 26, 1912, a young man and a young woman called at appellant's office in Portland and requested him to examine her with a view of determining certainly whether or not she was pregnant; they believing that she was then probably in that condition. Appellant was then given to understand that, should he find the young woman pregnant they desired that he perform an abortion upon her. Appellant consented to examine the young woman, but positively refused to perform any abortion upon her. His examination convinced him that she was pregnant, and he so advised them. He then charged her $5 for making the examination. No abortion was performed upon her by appellant, and nothing further was ever done by him for her. Appellant was not acquainted with either the young man or the young woman, but from conversation then had with her learned that she lived at Castle Rock, and was soon going to Little Falls to work. Appellant was well known in Portland, having lived there 33 years and had built up a good practice there in his profession. On January 6, 1913, 11 days after the visit of the young woman to his office, appellant received from respondent through the mail the following letter:

"Dear Dr.: A young lady lays dying from septic condition and incomplete abortion. She has made a full confession, you are charged with the crime. The confession is in my possession. In event of her death it will be turned over to the police. Confession is witnessed. I do not think she can last more than a day or so, judging by her present condition. I am very truly, [Signed] Dr. R.H. Campbell, Little Falls, Wn. January 4/12."

While the letter, upon its face, does not state to whom it was addressed, it came to appellant through the mail, addressed upon the envelope to him, in apparently the same handwriting as the letter, the postmark showing that it had been mailed at Little Falls. The figures "12" upon the letter indicating the year manifestly mean 13 since it was written after the visit of the young woman to appellant's office in Portland, which occurred, as we have seen, on December 26, 1912. Appellant was then wholly unacquainted with respondent. Remembering the visit of the young woman to his office a short time previous, and remembering that he had then learned that she was going to Little Falls to work, appellant concluded that the letter had reference to her. What appellant did and what occurred thereafter may be stated in appellant's own language from his testimony given upon the trial as follows:

"Q. When you received that letter you may state what you did. A. Well, I immediately called up my wife at that time and told her about the letter. * * * Q. Now, what effect did this letter have upon your mind? A. Why, the effect was somebody was putting up blackmail, or a job, as I would call it. * * * Q. Now, after talking with your wife on the telephone, what did you do next? A. I waited for my wife to come to the office, and we talked the matter over, and she advised me to call up this Dr. Campbell on the telephone, if possible. * * * A. I had to go to the long-distance office. The lines were somewhat out of order on account of the storms at that time. Q. Just state what conversation you had with Dr. Campbell on the telephone. A. Why, I told Dr. Campbell this was Dr. Bertschinger. I told him I received the letter from him that morning, and told (asked) him what the meaning of the letter was. He told me the letter speaks for itself, and advised me to come over there. We could not carry a conversation on very distinctly as it was very hard to hear. * * * Advised me to come over, and told me what train to take. I wasn't posted on the trains, and he told me to take the train leaving about 2 o'clock. I took that train over there, and when I got there I met him just as he was going into his house, by the gate. I arrived in Little Falls about 5 o'clock, and we got to talking about the matter and I asked him what the meaning of the letter was. * * * I wanted to find out what kind of a proposition I was up against; that was all, it looked like a piece of blackmail of some kind or shape to me. I had no reason to believe anything but that. I didn't know if any girl was in league with Dr. Campbell in the proposition, or whether something else had been done or what. * * * I asked about the girl, and I wanted to see her. He said, 'There is not much for you to see here.' She was lying unconscious and liable to draw her last breath, and no chance to see her. Finally he told me he had her in his house, and laughed at me and said he had me just where he wanted me. * * * He threatened to have me arrested, turn me over to the authorities. Q. What did he say in reference to the official capacity of himself? A. Well, that came later on. I then challenged him to take it up with the authorities or I would take it up myself, and then he told me it was no use to make any fuss over it, as he was the health officer there, and the best thing I could do was to settle with him, and in the event of death he could sign the death certificate; he was health officer there and the only physician in the town. * * * Q. What else did he say? A. * * * When I spoke of taking it up with the authorities myself, he then told me I had better not do that, I better settle the proposition with him, and first he asked me to pay the price of the nurse, which was $25. That I paid him in cash at the time. Then after that, I guess he thought I was a good subject, and he again said for a thousand dollars he would protect me no matter what the outcome would be. * * * Under the circumstances I reasoned, if he had such a confession, although it was a frame-up, that if the girl did it, which I didn't know whether she did or not, I would be liable if she did; he might use it against me. Rather than have a case of that kind I would sacrifice a thousand dollars and then investigate and find out and fight him afterwards. * * * I told him I could not pay any thousand dollars; I had just come back from the East on a trip, and I told him I could not raise a thousand dollars. 'You will have it here in two hours,' he said. I told him I could not raise that in 24 hours; I could raise $500 and give him my note for the balance. He said, 'No, no notes and no drafts, a thousand dollars in cash, in gold.' That was the only option I had. We walked down to the depot. I waited 4 or 5 hours. The train wasn't on schedule, and got home along about 2 o'clock in the morning. I told my wife of the conversation I had with Dr. Campbell, and she advised me to raise the money by mortgage or some way and go over there and protect my name rather than face this thing; it was a blackmail proposition, but rather than take a chance of having that on me, I had better pay a thousand dollars. So I thought of Mr. McKensie, a friend of mine, and through him we raised a thousand dollars and took it over to him. * * * Q. When you left Dr. Campbell did he give you any length of time in which to raise the thousand dollars? A. Twenty-four hours specifically. * * * He said to have it there in 24 hours. Q. When did you get back to Little Falls? A. We took the train at home that day at 2 o'clock and arrived there about 5. Q. Who went with you? A. My wife. Q. Your wife at that time? A. Yes. * * * Q. Now when you got back to Little Falls you say that it was about 5 o'clock. Just tell the jury what happened then. A. My wife and I approached his house, and he came out as we got to the gate, in his shirt sleeves; he didn't have a coat on, and he evidently was expecting us, and before we got to the porch of the house he came and opened the door to receive us, and as we entered the house he told my wife to go into the room to the left, and took me straight over to where he had his office in the residence, and we had a short talk there, and he said the girl was about the same, and she was still unconscious, and that he didn't know whether she would draw her last breath any minute, and he wanted to know if I had the money. I said, Yes, I had it there. By the way I forgot to mention this: The day before he said he would surrender this confession from the girl if I paid over this thousand dollars. This he refused to do the second day. He didn't give us the confession, but he kept the money. That is, after a

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