Eberhart v. Murphy

• Citation: 188 P. 17,110 Wash. 158
• Decision Date: 08 March 1920
• Docket Number: 15578 1/2.
• Parties: EBERHART v. MURPHY et al.
• Court: United States State Supreme Court of Washington

188 P. 17

110 Wash. 158

EBERHART v. MURPHY et al.

No. 15578 1/2.

Supreme Court of Washington

March 8, 1920

Department 1.

Appeal from Superior Court, Yakima County; Harcourt M. Taylor Judge.

Suit by Harry J. Eberhart against William P. Murphy and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Holcomb C.J., and Mackintosh, J., dissenting.

Williamson & Luhman, of North Yakima, for appellants.

Grady &amp Shumate, of Yakima, for respondent.

MITCHELL J.

This suit consists of two causes of action against William P Murphy, sheriff of Yakima county, and the Massachusetts Bonding & Insurance Company, as surety on the sheriff's official bond. The first cause of action is on account of an alleged false arrest and imprisonment. The second alleges that upon being confined in the county jail plaintiff was made the victim of a mock trial by the other inmates, during the progress of which he was assaulted and seriously injured. There was a verdict and judgment for the plaintiff, and defendants have appealed.

In the first cause of action it is alleged the sheriff arrested respondent on the 11th day of June, 1917, and confined him in the county jail without having any warrant therefor, causing him to suffer shame and mortification and injuring him in his reputation and social standing. In the second cause of action it is alleged that upon being arrested he was thrown into the county jail, in which were confined criminals, among others negroes and Indians, some of whom were dangerous and desperate men and well known as such to the sheriff; that he was seized by the other prisoners, who purported to conduct a mock trial, during which he was assaulted, beaten, and seriously injured, necessitating hospital treatment, the care of a physician, and a surgical operation; that at and prior to his imprisonment and injuries the sheriff and his deputies knew of the custom of prisoners in the jail to hold such mock trials and mistreat and beat prisoners, and, having such knowledge, took no steps whatever to protect respondent, although by ordinary care on the part of the sheriff and his deputies the assault and injuries upon respondent could have been prevented.

Appellants separately answered, setting up practically the same defenses. As to the first cause of action it was denied that the arrest was without a warrant, and it was further alleged that the sheriff made the arrest by authority of a warrant which he knew had on that day been issued upon an information filed in the superior court of Whatcom county charging respondent with the crime of grand larceny; that on June 11, 1917, one Leighton told the sheriff that respondent had stolen an automobile belonging to him and respondent, and that the sheriff believed and in good faith relied on the statement; that on the day of the arrest the sheriff had a telephone conversation with the prosecuting attorney of Whatcom county, and was by him informed of the theft of the automobile by respondent; that the sheriff relied on and believed that information and had reasonable grounds to believe respondent guilty; that on the day of the arrest the sheriff had in his possession a letter from the same prosecuting attorney advising that respondent was guilty of grand larceny and directing the sheriff to prevent his escape, and that the sheriff relied on the statements; that on the day of the arrest, in conversation with the sheriff, the respondent admitted the crime with which he was charged, and the sheriff arrested respondent only after acquiring all such information; and that there were reasonable grounds for his belief that respondent had committed a crime. As to the second cause of action, after denying allegations showing liability, each answer affirmatively stated that respondent provoked and was responsible for the assault made upon him by the other prisoners, and that the sheriff or his deputies were in no way aware of it nor directly or impliedly responsible therefor.

By stipulation the complaint was amended by interlineation in material respects, and thereafter, on September 27, 1917, respondent moved to strike certain portions of each of the answers. On October 6, 1917, the bonding company moved for a judgment of nonsuit for the reason the complaint did not state that leave of court had been granted to sue on the sheriff's bond. On October 22, 1917, the motion to strike certain portions of the answers was granted in part and denied in other respects; and at the same time the motion for nonsuit for want of leave of court to sue on the bond was denied. Thereafter, on October 29, 1917, amended answers were filed setting up with more particularity the facts alleged in the original answers. Replies were filed to the amended answers. There was considerable delay in the trial of the action without any fault of respondent. A trial was set for the June term, 1918, but at request of appellants, because of the illness of one of the attorneys for the sheriff, it was continued over upon written stipulation among the parties which, among other things, provided that depositions might be taken by either party upon reasonable notice in the event it was considered necessary by reason of the delay in the trial, and that witnesses might go away and could not be produced at the trial. The next jury session to be held was January, 1919, and on December 6, 1918, respondent noted the case for trial, and on December 9, 1918, it was assigned for trial on January 7, 1919. It appears the jury session was postponed until February, and on January 27, 1919, the case was set for trial on February 5, 1919. On January 29, 1919, the attorneys for the sheriff withdrew from the case. On January 31, 1919, both appellants moved for a continuance of the trial over the jury term. The motion was supported and resisted by affidavits, and within a few days, upon being presented, a continuance was denied, except it was reassigned for February 24, 1919, at which time the trial took place.

The case is brought here upon numerous assignments of error which are argued in the briefs upon six propositions:

(a) That a statutory nonsuit should have been granted the bonding company under section 960, Rem. Code. That section provides for leave of court to a private party to sue on an official bond. It is clear from a reading of the whole section its purpose is to protect those liable on such bonds from frivolous actions. The failure of the complaint to show such authority must be promptly moved against or the point considered waived. Here, after a stipulation for amending the complaint in important respects, after answers setting up the same denials and defenses as those subsequently amplified in amended answers upon which the case was tried, and after the answers had been moved against, the appellants interposed the belated motion for a nonsuit. No leave was asked or obtained to withdraw the answer to interpose the motion which we think came too late. In Nye v. Kelly, 19 Wash. 73, 52 P. 528, it was said:

'Instead of moving against the complaint, they demanded a bill of particulars, and, that having been furnished, they saw fit to answer to the merits, and we think the objection was thereby waived. While the question is perhaps not solely a question of pleading, nevertheless the objection, to be available, should be promptly made.'

The same principle is recognized in the case of Hunter v. Berridge, 103 Wash. 536, 175 P. 165, where it was held that a demurrer answered the purpose of a motion, to present the objection to the complaint, and that pleading over after the demurrer did not waive the objection.

(b) It is contended the court erred in denying appellants' motion for a continuance. This is important as to the first cause of action only. It is claimed the sheriff was unable to be represented at the trial by counsel because of their withdrawal. It appears his attorneys acted entirely within their contract made nearly two years before, and besides the case was not tried for nearly a month after the attorneys withdrew. The contention that the sheriff was too busy with the important work of the local board under the Selective Service Act was met with strong affidavits that at that time the board was closing up its work, to which the sheriff then gave very little of his time, and when the trial took place nearly a month later the sheriff did attend and testify. The bonding company claims that, because it had largely depended upon the sheriff to look after the case, the withdrawal of his attorneys justified a continuance so far as it was concerned. The respondent was in no way responsible for that dependence, and, as has been noticed, the bonding company made and maintained a separate appearance through the whole of the case, and had nearly a month's time after the withdrawal of the attorneys for the sheriff, and before the trial, to adjust itself to changed conditions. It is claimed a continuance should have been granted because appellants learned on January 31, 1919, for the first time that the prosecuting attorney of Whatcom county had been absent since August, 1918, engaged in overseas work in Italy; that he was a necessary witness and would testify that over the telephone he informed the sheriff a warrant had been issued in Whatcom county for the arrest of the respondent and placed in the hands of the sheriff of Whatcom county, who was then on his way to Yakima county to arrest respondent, and instructed appellant Murphy to hold respondent; that such conversation occurred prior to the arrest of the respondent by the appellant Murphy, and that there was no other witness by which the same could be proved. Under section 1215, Rem. Code, the prosecuting attorney of Whatcom county could not be compelled to attend...