Jahns v. Clark

• Citation: 244 P. 729,138 Wash. 288
• Decision Date: 29 March 1926
• Docket Number: 19752.
• Parties: JAHNS v. CLARK, Sheriff, et al.
• Court: United States State Supreme Court of Washington

244 P. 729

138 Wash. 288

JAHNS v. CLARK, Sheriff, et al.

No. 19752.

Supreme Court of Washington

March 29, 1926

Department 2.

Appeal from Superior Court, Spokane County; Huneke, Judge.

Action by Henry Jahns, as guardian ad litem of Arthur Jahns, a minor, against Harry C. Clark, sheriff of Spokane County, and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Refusal to give instructions, which so far as correct were covered by instructions given, was not error.

Williams & Cornelius, Charles H. Leavy, E. J Farley, and M. E. Jesseph, all of Spokane, for appellants.

Thomas A. E. Lally, of Spokane, for respondent.

MACKINTOSH J.

The minor who is prosecuting this action by his guardian ad litem was shot by a deputy sheriff of Spokane county, and seeks to recover damages for the resulting injury. The deputy, who is the appellant Thomas, was sued along with the sheriff appellant Clark, and the appellant surety company, when furnished the statutory sheriff's bond. The shooting took place on the evening of October 16, 1924, and the evidence as the jury had a right to view it, shows that the sheriff had sent the deputy Thomas, with other deputies, in the sheriff's automobile, to the neighborhood where the shooting took place for the purpose of arresting or capturing bootleggers who he had reason to believe were likely to pass on the highway at that time. Between 6 and 8 o'clock in the evening, it being dark at the time, the respondent and his brother were returning in an automobile to their home, located about a mile from the place where the shooting occurred. The brother was driving, and the respondent was seated in the rear seat. Both the boys were innocent of any offense, nor were they on their way to commit any. No warrant was in the hands of any officer present for their arrest nor for the arrest of any person. The automobile was being driven well within the statutory speed limit along the public highway. When it approached the place where the officers were stationed, it did not increase its speed. While some little distance away from the officers, the boys saw a light ahead of the automobile and to the side of the highway. On account of the darkness it was impossible to see who was carrying the light, but it appeared to be in the hands of some one who was walking toward them. No signal was given which indicated a request for the automobile to stop, nor was any command to that effect made, nor was any exhibition made by the person carrying the light of any star or authority as a peace officer. Without any warning, when the automobile reached a point opposite the officers, a shot was fired, and when the car had proceeded about 20 feet farther, a second shot was fired, which entered the body of the respondent. This shot was fired from a sawed-off shotgun belonging to the sheriff, and was fired by the appellant Thomas. The automobile was immediately stopped, and the wounded boy was removed; the other deputies in the meantime having appeared at the car. After the boy had been removed, the appellant Thomas displayed his deputy sheriff star. A verdict was returned against all the appellants, and the judgment based thereon has been appealed from by Thomas separately, and Clark and his surety joining in a separate appeal.

We shall first take up for consideration the points raised by the appeal of the deputy Thomas.

1. It is claimed that the court committed error in rejecting the testimony of a doctor called by the appellants. It appears from the testimony that this doctor had originally been called to attend the boy soon after the shooting, and had been employed for that purpose by the respondent's father; that shortly before the trial, and after the original employment had ceased, this same doctor had made an examination of the boy at the request of the appellants for the purpose of testifying at the trial. When the doctor was produced upon the stand, objection was made to the introduction of his testimony, for the reason that it was privileged communication. Authorities are cited on this point that the privilege extends only to information acquired during the time that the relation of physician and patient exists, and does not prevent the physician from testifying to information regarding a patient which he may have acquired after the termination of that relationship. But this rule does not cover the situation disclosed by the record. Even if the doctor might have been permitted to testify to what he discovered on an examination made by him for the express purpose of testifying, the record shows that the doctor himself said that he could not restrict his testimony to what he discovered at that examination; that the answers which he would be compelled to make would of necessity be based partly upon information which he derived during the continuation of the confidential relation; and that he could not disconnect what he learned at that time from what he learned when employed by the appellants to make an examination for the purpose of testifying. The respondent offered to allow him to testify without objection to anything that he learned solely during the last examination, but by the doctor's own statement it was impossible for him to do this. There is no error, therefore, in the court's refusal to permit the introduction of this testimony.

2. Offer of testimony was refused to show that a portion of the injury was caused by the act of the physician in probing for the shot. As we read the record on this point, the testimony sought to be introduced was through a federal prohibition officer, and not by a physician. Furthermore, there was no pleaded issue of this nature, and this offer was on an immaterial point, and its denial is not prejudicial.

3. The last error assigned by appellant Thomas concerns the refusal to give three of his requested instructions and the giving of three other instructions by the court. The three instructions given by the court properly stated the issue in the case, and that was whether the officers had reasonable ground to believe and actually did believe, that the automobile at which the shot was fired contained violators of the law guilty of felony; that felony being, according to the evidence and pleadings in the case, the crime of bootlegging. White v. Jansen, 142 P. 1140, 81 Wash. 435; Eberhart v. Murphy, 188 P. 17, 110 Wash. 158; Young v. Long, 214 P. 821, 124 Wash. 460; Coles v. McNamara, 230 P. 430, 131 Wash. 377. These instructions fully and fairly stated the issue and the law applicable thereto, and placed the burden upon the appellant Thomas to show by the evidence that he was justified in firing the shot at the automobile. The instructions which were requested, in so far as they correctly stated the law, were amply covered by the instructions given, and, of course, those portions of them which did not correctly state the law were properly refused. We can find no error in the judgment in so far as it affects the appellant Thomas.

Passing now to the appeal of the sheriff and his surety, we find that at the conclusion of the respondent's case in chief these appellants made a statement that they then rested, and announced that they would not participate in the defense. The appellant Thomas then proceeded with his defense, and at the end of all the testimony the appellants Clark and the surety company for the first time challenged the sufficiency of the evidence and moved for judgment. These appellants now contend that the only part of the record that affects them is that which was introduced in the respondent's case in chief, and that their challenge to the evidence is to be determined from the record as it stood at the close of respondent's case; their claim being that at that time the evidence showed affirmatively that the respondent could not recover against these appellants.

Assuming without deciding, that the liability of these appellants is to be determined from the record, as they contend, there appears enough therefrom to establish their liability. ...