Hayes v. Sears, Roebuck & Co.
| Decision Date | 03 September 1949 |
| Docket Number | 30822. |
| Citation | 34 Wn.2d 666,209 P.2d 468 |
| Court | Washington Supreme Court |
| Parties | HAYES v. SEARS, ROEBUCK & CO. |
An action by Jesse Lee Hayes against Sears, Roebuck & Company for false arrest and malicious prosecution involved liability of defendant employer for acts done by an employee who was also a special deputy sheriff.
The Superior Court of King County, Clay Allen, J., granted defendant a new trial because of instruction that employee had not acted as officer, and granted the plaintiff a new trial of action for malicious prosecution which had been taken from jury.
On defendant's appeal and plaintiff's cross-appeal the Supreme Court, Beals, J., held that a new trial was properly granted defendant and improperly granted to plaintiff, and affirmed in part and reversed in part with directions.
Whether special deputy sheriff appointed by public authority but employed and paid by defendant was acting as a private person without authority of law, or whether he was acting in an official capacity in making arrest, was for jury, and trial court properly granted the defendant a new trial because of error in instruction that the person making the arrest acted as a private person.
Elliott & Lee, Seattle, for appellant.
Lloyd Holtz, Seattle, for respondent and corss-appellant.
The plaintiff in this action, Jesse Lee Hayes, entered the employ of defendant, Sears, Roebuck and Company, a corporation early in September, 1945. His duties included operating an elevator and working in the shipping room. He engaged in outside activities, such as dealing in junk, and transporting, for compensation, fellow employees to and from defendant's building.
The defendant owned and operated a large retail establishment in Seattle and, in an adjoining building, a mail order and delivery plant serving approximately twenty retail stores throughout the state of Washington and adjacent territory. From this latter building, merchandise was shipped to defendant's retail stores and delivered at the adjoining retail establishment.
In the late spring of 1946, a shortage of about one hundred automobile tires at the Seattle retail store was discovered. Professional private detectives were engaged who, upon investigation, found that plaintiff was in the habit of transporting to his home in his truck, after working hours, a considerable, number of tires, as well as other merchandise.
In the late afternoon of July 29th, in response to a telephone message, plaintiff reported at defendant's general office, whence he was conducted to the manger's office, where Mr. Wandell, the operating superintendent of the retail store, Mr. Potter a special agent in defendant's employ, who held a 'Special Deputy Sheriff's Commission,' and Mr. Pratt, a private detective in the employ of the Burns Detective Agency, questioned plaintiff for several hours. At about 8 o'clock p. m., Mr. Sweeney, assistant manager of the local Burns agency, joined the group.
It seems that defendant accorded to its employees the privilege of purchasing articles from its store, for their own use or that of their immediate families, at a discount of ten per cent. During the course of the evening, plaintiff admitted that he had purchased merchandise from defendant at the allowed discount, which he had resold at a profit of ten per cent or a little less. Later plaintiff wrote and signed the following statement (which was introduced in evidence upon the trial of this action as plaintiff's exhibit No. 1):
After signing the foregoing statement, plaintiff, accompanied by the persons above named, drove to the homes of some of his neighbors, who were questioned concerning articles which they had purchased from plaintiff. The party then returned to defendant's establishment, whence plaintiff drove to his home in his truck, leaving defendant's store shortly after 1 o'clock a. m.
Plaintiff returned to defendant's store the following morning, where he remained until about 7 o'clock that evening. Employees of the store were also questioned concerning plaintiff's operations, Messrs. Potter and Sweeney and the other questioners being of the opinion that plaintiff had not fully disclosed the extent of his activities.
It appears that plaintiff was paid his salary for these days, including payment for every hour he was questioned outside of working hours.
During the day, Mr. Potter communicated with D. T. Shinn, Esquire, a member of the staff of the prosecuting attorney for King county, informing him of the situation as disclosed by plaintiff and others. Mr. Shinn expressed the opinion that plaintiff, in follwing the course above referred to, had committed the crime of larceny, and advised Mr. Potter to obtain all possible information from plaintiff and others concerning the transactions in question.
Late in the afternoon of July 30th, Mr. Potter and his associates took plaintiff to the county jail, where he was booked 'for further investigation by the Prosecuting Attorney.'
Additional information having been obtained concerning plaintiff's activities, on July 31st Mr. Shinn directed the preparation of a complaint charging plaintiff with the offense of grand larceny, and a complaint was prepared, which was signed by Mr. Potter. Pursuant to the complaint, a warrant was issued and, on the same day, served upon plaintiff in the county jail. A few days thereafter, plaintiff posted a bail bond and was released.
A preliminary hearing was held Before a justice of the peace, August 7, 1946, plaintiff entering a plea of not guilty. The cause was heard August 14th following and continued to September 11th, when the justice completed the hearing and entered a written ruling discharing the plaintiff Hayes.
October 14, 1946, plaintiff instituted this suit against defendant, by his first cause of action charging false arrest and unlawful imprisonment, for which plaintiff demanded judgment for $5,000, and by his second cause of action charging defendant with malicious prosecution, for which damages were demanded in the sum of $25,000.
The case came on for trial Before the court and jury, June 17, 1948. On defendant's motion, the trial court withdrew from the jury the second cause of action, basing its ruling upon the proposition that defendant had made a full and fair disclosure of the facts to the prosecuting attorney, and submitted to the jury only the first cause of action, upon which the jury returned a verdict in favor of plaintiff in the sum of $5,000.
In due time, defendant filed alternative motions, first, for judgment in its favor notwithstanding the verdict, on the first cause of action, or, in the event of the denial of that motion, for a new trial.
Plaintiff filed a motion for a new trial upon the second cause of action.
After argument, the trial court entered an order denying defendant's motion for judgment in its favor on the first cause of action notwithstanding the verdict of the jury, granting defendant's alternative motion for a new trial on the first cause of action (basing this order upon the ground that the court had given the jury an erroneous instruction to defendant's prejudice and to which defendant had excepted), and granting plaintiff's motion for a new trial on the second cause of action.
Defendant has appealed to this court from the order denying its motion for judgment notwithstanding the verdict in plaintiff's favor on the first cause of action, and from the order granting defendant's alternative motion for a new trial upon the first cause of action 'when there was no evidence upon which to submit said cause of action to the jury.' Defendant also appealed from the court's order granting plaintiff's motion for a new trial on his second cause of action.
Plaintiff has cross-appealed from the order granting defendant's motion for a new trial on plaintiff's first cause of action.
Defendant makes the following assignments of error:
'The trial court committed reversible errors, as follows:
'(1) In denying the challenge to the sufficiency of the plaintiff's evidence.
'(2) In refusing to permit the defendant to move for a directed verdict.
'(3) In refusing the defendant's requested instruction withdrawing the first cause of action from the jury.
'(4) In denying defendant's motion for judgment notwithstanding the verdict on the first cause of action.
'(5) In granting defendant's alternative motion for new trial as to the first cause of action,...
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