Biehn v. Bannick, 23116.

• Decision Date: 28 January 1932
• Docket Number: 23116.
• Parties: BIEHN et ux. v. BANNICK et al.
• Court: Washington Supreme Court

7 P.2d 567

166 Wash. 465

BIEHN et ux. v. BANNICK et al.

No. 23116.

Supreme Court of Washington, En Banc.

January 28, 1932

Appeal from Superior Court, King County; James B. Kinne, Judge.

Action by John Wesley Biehn and Olive Biehn, husband and wife againt Claude G. Bannick and others. From judgment for plaintiffs, after remittitur, defendants appeal.

Reversed and remanded, with instructions.

Caldwell & Lycette and William H. Brinker, all of Seattle, and Robert Burgunder and William G. Beardslee, both of Seattle, for appellants.

William A. Gilmore, of Seattle, for respondents.

HOLCOMB J.

This action was instituted by respondents against appellants for $25,500 damages for false arrest, imprisonment, and malicious prosecution. The chief adversaries in the litigation are respondents, and appellant Underhill, a deputy under appellant Bannick, sheriff of King county. The surety company was sued as surety on the sheriff's bond.

This action arose out of a controversy as to the ownership of a certain Jersey-Guernsey cow which respondents had raised from a calf. They had kept it in their possession on their property in Kirkland until they exchanged equities in certain property with owners named Routt; Mrs. Routt being the stepdaughter of Underhill. In making the exchange of properties between respondents and the Routts, according to the contention of respondents, they moved to Seattle and left their cow in the possession of the Routts allowing them to use the cow for taking care of her until respondents returned to another place they owned in Kirkland in the fall. Underhill lived in Bothell and at all times in the transactions hereinafter mentioned, and up to and including the time of trial, was the duly appointed qualified, and acting deputy sheriff of King county under sheriff Bannick. There was also a deputy sheriff in Bothell named Parker. On October 2, 1929, Mrs. Biehn notified Mr. Routt, while on the ferry crossing to Kirkland, that they had returned to Kirkland to live and wanted their cow. The next morning Mrs. Routt went to Bothell and claimed that she sold the cow to her stepfather, who took possession of the cow on October 5 and removed her from Kirkland to Bothell. On the same day, Mr. Biehn went to Mrs. Routt in Kirkland and demanded the return of the cow. Underhill claimed to have paid $10 cash and promised $90 more for the cow. He admitted that on October 6, Mrs. Routt informed him that respondents had demanded possession of the cow the day Before , and that he knew they were claiming the cow as their own property. On October 15, respondents went to Bothell, and, acting under advice of their attorney, took the cow out of Underhill's pasture, took her back and placed her in a pasture near Kirkland, about three blocks from their home, because they had no pasture of their own. Between October 15 and Sunday, October 20, when Underhill, assisted by Deputy Parker, arrested respondents, Underhill was informed by several persons that respondents had the cow. At all times during that time Underhill knew where the cow was, but made no arrest until Sunday morning, at which time he advised respondents that they could not give bail if they had $10,000, because it was Sunday; from which it could be fairly deduced that he had some personal malice toward respondents. The next day Underhill personally filed a charge of grand larceny against respondents, accusing them of stealing the cow, and they were admitted to bail. A few days later Underhill obtained a search warrant for respondents' home, and, accompanied by another deputy sheriff, searched their home, demanded the key to the pasture, again threatened them with arrest, returned the next morning and took the cow from the pasture, where it was being kept, back to Bothell. At the time the criminal charge of grand larceny was tried in King county, a civil suit in replevin for possession of the cow was pending between respondents and the Underhills, which was subsequently decided by a jury in favor of respondents, and legal possession of the cow obtained on the judgment therein.

In their first cause of action, respondents alleged that on Sunday morning, October 20, 1929, without any warrant or any process, Underhill arrested respondents and took them in an automobile to the King county jail. In paragraph V of their complaint, they allege that appellant Underhill was at all times in the complaint mentioned and now is a duly and regularly appointed deputy sheriff by appellant Bannick, sheriff of King county, and had duly qualified and was acting as such at all times hereinafter mentioned; and, under the laws of Washington, the sheriff and his surety on his official bond were responsible and liable to the amount of the official bond for the default, misconduct, and dereliction of his deputy Underhill, as hereinafter more specifically detailed. In subsequent paragraphs of the complaint, they allege the arrest on Sunday, as heretofore stated, by Underhill; that it was under the orders of his superior the sheriff and without reasonable or probable cause and in a rude and insolent manner, without any order, warrant, or process authorizing him to so arrest; that Underhill with force arrested them, used abusive language, and stated to them that they were arrested on Sunday so that they could not give bail, upon a charge of grand larceny, accusing them of stealing a cow which he claimed as his own, but which he knew was the property of respondents; that immediately thereafter Underhill placed them in his automobile, while threatening to use force, driving them around the public highway by way of Bothell into Seattle where he caused them to be incarcerated in the jail at about the hour of noon, where they were confined during the remainder of Sunday and all of Sunday night and the following Monday until noon among criminals of the lowest and worst type; that on the following day Underhill filed a charge of grand larceny against them, accusing them of stealing the cow, Before John B. Wright, justice of the peace; that the arrest and imprisonment of respondents by Underhill was without reasonable or probable cause and was done maliciously by him for the purpose of restraining them and depriving them of their liberty. Further allegations were made that such proceedings were had on the charge of grand larceny in the superior court for King county; that they were duly and regularly acquitted by a jury, and the criminal proceedings thereby fully terminated; that by reason of such false arrest and false imprisonment and restraint of their liberty, respondents were injured in their good name and reputation, subjected to disgrace, humiliation, and public suspicion from the citizens of King county and among their friends and acquaintances; that Underhill caused wide publicity of their arrest and imprisonment, thereby causing them public disgrace, humiliation, and suspicion among the citizens of King county, and particularly among the towns on the east side of Lake Washington, etc.; that respondents by reason thereof suffered and continued to suffer great mental anguish and nervous strain, were deprived of their rest and sleep for many nights, and rendered ill in mind and body, and were doubted by their friends and shunned by others; that the health of both respondents had been generally impaired by reason thereof. Those were the allegations upon which respondents, in their first cause of action, claimed damages of $25,000, against all appellants.

The second cause of action readopted the allegations of several paragraphs of the first cause of action and then alleges, among other things, appellant Underhill on October 20, while acting as a deputy sheriff and acting under the orders of appellant Bannick, sheriff, entered the home of respondents without an order, warrant, or any process, and by force arrested them and confined them in the King county jail in Seattle; that on October 21, 1931, appellant Underhill filed a complaint under oath in the justice of the peace court of John B. Wright charging respondents with grand larceny, by having feloniously stolen a certain Jersey-Guernsey cow alleged to have belonged to Underhill, but, in fact, known by him to be the property of respondents, and procured the justice of the peace of issue a warrant for the arrest of respondents upon that criminal charge; that they were required to and did furnish bail in the sum of $1,000 to answer the criminal charge; that in such filing of the criminal complaint against respondents and prosecuting them on that charge, appellant Underhill acted wantonly, unlawfully, maliciously, and without reasonable or probable cause; but solely for the purpose of injuring respondents and their good name and reputation; that they were thereafter acquitted by the verdict of a jury and that by reason of the malicious prosecution of respondents by appellant Underhill, and while acting under the orders of appellant Bannick, respondents were compelled to expend and did expend the reasonable sum of $500 as attorney's fees in defending themselves from such malicious prosecution to the further damage in the sum of $500.

Appellants joined in one answer to the complaint of respondents denying generally all of the allegations of the complaint except the relations between the parties respondent and appellant, admitted that appellant surety company was the surety on the official bond of appellant Bannick as sheriff of King county in the sum of $5,000, admitted that appellant Underhill was a deputy sheriff appointed by sheriff Bannick, and denied all the remainder of paragraph V of respondents' complaint, as heretofore set out.

Motions separately made by each of appellants for nonsuit and directed verdict were overruled by court, and...