Kilcup v. McManus

• Decision Date: 23 July 1964
• Docket Number: No. 36776,36776
• Citation: 64 Wn.2d 771,394 P.2d 375
• Court: Washington Supreme Court
• Parties: Ian KILCUP, Respondent, v. Thomas P. McMANUS, also known as Captain Tom McManus, also known as C. P. McManus, and Dorothy G. McManus, his wife, Appellants, The Port of Seattle, a municipal corporation, Defendant.

Page 771

64 Wn.2d 771

394 P.2d 375

Ian KILCUP, Respondent, v. Thomas P. McMANUS, also known as Captain Tom McManus, also known as C. P. McManus, and Dorothy G. McManus his wife, Appellants The Port of Seattle, a municipal corporation, Defendant.

No. 36776.

Supreme Court of Washington, En Banc.

July 23, 1964.

Merges, Brain & Hilyer, G. Robert Brain, Seattle, for appellants.

William S. Howard, Seattle, for respondent.

HALE, Justice.

To the perplexing problems surrounding community tort liability in this case, we find added complications induced by the obscure doctrine that a public official's community is not liable for torts committed in the performance of his official duties. Plaintiff's claim declares a false arrest and imprisonment against a Port of Seattle commissioner.

A telephone call about noon, April 30, 1960, to his home from the head security guard at the airport told Ian Kilcup he had been fired from his job as a security guard and directed him to remove his personal gear from the airport forthwith and to turn in his commission as a King County deputy sheriff. Kilcup drove to the Seattle-Tacoma International Airport where he had been employed for nearly 2 years as a member of the security guard force and parked his car in the upper driveway. He told a guard standing nearby that he had been discharged and would get a shopping bag for his personal effects and return shortly. The guard said 'Okay' and allowed him to park his car at that place, anticipating Kilcup's early return.

Before his employment as a security guard by the Port of Seattle, ¹ Kilcup had acquired more than a rudimentary knowledge of police work. He had served in the Navy as a member of the shore patrol and as a deputy sheriff of Grays Harbor County for 2 years, during which latter assignment he attended a school for police officers conducted by the Federal Bureau of Investigation.

After parking his car, Kilcup got a shopping bag, retrieved his effects from his locker, and went about the airport chatting with and saying goodbye to his friends and fellow employees. Later, one or more of the women working at the insurance counter indicated that he bothered or annoyed them by occupying their attention while they were working, but on this point the record is singularly vague.

Kilcup was in the office of Joseph King, an employee of one of the contract concessionaires, shortly after 2 o'clock when there came a knock on the door. King opened the door and Thomas P. McManus, the principal defendant, walked in without invitation and said, 'There you are,' finishing the exclamation with a burst of profanity. McManus either tapped Kilcup three times on the shoulder or grasped him by the shoulder--the witnesses disagree on which--and said, 'You are under arrest. I am a deputy sheriff,' and then accused Kilcup of threatening people who worked in the insurance counter. The tapping on or grasping of the shoulder is the only evidence of physical force shown throughout the entire series of incidents.

At that moment, there came another knock on the door and Robert G. Willis, the senior airport security guard on duty at the moment, walked into the office. McManus said to him, 'Here he is. I have placed him under arrest. Don't let him get away.' Willis testified that, earlier in the day, McManus had called him on the telephone and directed him to find and hold Kilcup for the sheriff's office. McManus and Willis together had searched areas of the airport for Kilcup and, while Willis had checked the restaurant area McManus had walked down the hall to the office of Mr. King.

The three men, plaintiff Kilcup, defendant McManus and Guard Willis, then walked to the front driveway together where McManus again told Willis to make sure that Kilcup did not get away while he, McManus, telephoned the sheriff. Kilcup says he overheard part of McManus's telephone conversation with someone at the sheriff's office requesting them to send out the sheriff or a sergeant, saying, 'I have a man here under arrest I am going to put in jail.'

The three men waited at the airport driveway for a few minutes near where McManus had parked an official Port of Seattle car. McManus told Kilcup, designating his official vehicle, 'Get in the back seat, sit down and be quiet.' Kilcup says he complied with these instructions and that Officer Willis got into the front seat with Commissioner McManus who drove the car. McManus announced that they were driving to the sheriff's precinct station, known by the three men to be located in the hangar of Pacific Northern Airlines about a mile away. Plaintiff says that, enroute, McManus told Willis to keep his eye on 'this fat, sloppy creampuff,' and that he personally could handle Kilcup with one hand but did not want to undertake it while driving. Willis's testimony substantially corroborated the intendments of this communication, if not the precise language employed in it.

The three men drove in the official Port of Seattle vehicle to the sheriff's precinct station which turned out to be closed. They waited for about 10 minutes when McManus told Kilcup to get back into the car, whereupon they drove back to the airport driveway and again waited about 5 minutes for the arrival of officers from the sheriff's office. Then Sergeant Jack E. Triplett, a thoroughly experienced and seasoned officer in the sheriff's office for King County, arrived and, according to Kilcup's account, McManus told him that he had placed Kilcup under arrest and that he should be taken down town and booked. Sergeant Triplett describes this part of the transaction in this way:

'* * * Commissioner McManus stated that Mr. Kilcup had been relieved of his duties and that he had created a disturbance over at the insurance counter with one of the girls that was employed there and that he was asked to leave and he refused. He advised me that he [McManus] did have a commission from the Sheriff's department. If I am not mistaken, I believe he showed me a badge. * * *'

Sergeant Triplett told McManus that any employee complaining of a disturbance should sign a complaint before a justice of the peace; later, when the employees at the insurance counter were questioned, Triplett told McManus the name and address of the justice of the peace for that area. McManus insisted, according to Sergeant Triplett, that he take Kilcup to jail but Triplett declined to do so without a warrant. McManus also later insisted, according to Sergeant Triplett, that the deputy sheriff see to it that Kilcup left the airport. Kilcup left the airport at about 5 p. m., claiming false imprisonment for more than 3 hours beginning with his false arrest in King's office around 2 p. m.

That McManus presumed to act under his authority as a port commissioner is seen in the evidence given by another guard. Mr. Alexander E. Muir, one of the security officers and an employee of the Port of Seattle, testified that McManus called him at his home about 6 o'clock that evening and upbraided him for failing to carry out orders that McManus had left with him earlier in the day. At about 3:15 in the afternoon--apparently some time following McManus's first contact with Kilcup--at McManus's insistence, Muir had written into the security guard log a notation that McManus be called on the telephone at any hour of the day or night if Kilcup came back to work. Not receiving any telephone call in accordance with these instructions, McManus called Muir shortly after Kilcup had left the airport to ascertain why the orders left by him had not been carried out.

This narrative of the events comes from the direct and cross examinations of the witnesses presented by Ian Kilcup, the plaintiff, in support of his claim against Thomas P. McManus and Dorothy G. McManus and their community and against the Port of Seattle for false arrest and imprisonment. Curiously enough, the defendant McManus, while present at the trial, did not testify nor did he present any witnesses in defense. Of the many possible witnesses, none was called to establish that Kilcup had created a disturbance or bothered or annoyed anyone at the airport or interfered with the performance of any employee's work. At the close of the evidence, the trial court granted the Port of Seattle's motion for dismissal and neither the plaintiff nor McManus and his wife appeal from this order of dismissal although the defendants McManus do note it in one of their assignments of error arguendo. The trial court granted plaintiff's motion for a directed verdict on liability, leaving the question of damages to the jury. From a judgment on the verdict in the sum of $5,000, against Thomas P. McManus and Dorothy G. McManus and their community, the defendants appeal.

Appellants point to the dismissal of the Port of Seattle as a strong basis for relieving them of community liability. If, appellants argue, the Port of Seattle is not liable, neither can the community be held liable because, if McManus was not engaged and acting within the scope and course of his official employment, he was not ipso facto within the scope and course of his duties to the community. They urge, therefore, that the release of the Port of Seattle should operate to relieve the McManuses' community of any liability for his actions toward Kilcup. We think that this claim of error merges with and will necessarily be resolved in the determination of this case.

The evidence, in our view, leaves only two problems as pointed up by numerous assignments of error: (1) Did the court err in directing a verdict for the plaintiff? and (2) Do the facts of the case render the community liable? A third problem coming to our attention from the entire record, but not presented by the parties, raises the question: Shall we adhere to the rule that the community of a public officer or official is immune from his tortious acts committed in the performance of his official duties?

First, as to the problem of the directed...