Mitchell v. Hughes

• Decision Date: 20 November 1918
• Docket Number: 14839.
• Court: Washington Supreme Court
• Parties: MITCHELL et al. v. HUGHES et al.

176 P. 26

104 Wash. 231

MITCHELL et al. v. HUGHES et al.

No. 14839.

Supreme Court of Washington, En Banc.

November 20, 1918

Appeal from Superior Court, King County; Walter M. French, Judge.

Action by Elizabeth E. Mitchell and husband against E. J. Hughes and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Fullerton J., dissenting.

Daniel Gaby, of Renton, and Bradford & Egan, of Seattle, for appellants.

Charles S. Gleason and E. P. Dole, both of Seattle, for respondents.

TOLMAN J.

This action was brought by respondents, who are husband and wife to recover for personal injuries received by the respondent wife on or about the 3d day of December, 1916.

The facts admitted or fairly established by the evidence are substantially as follows: The respondent wife was employed in Seattle, her husband being employed near Renton, and their child living with its grandmother in Maple Valley, all in King county, Wash. On the date mentioned, Charles McCoy, who was a friend of the family, and who lived in Maple Valley informed the respondent Elizabeth E. Mitchell that he intended to drive that night in his automobile from Renton to Maple Valley, and offered to take her to Maple Valley to see her baby, which invitation she accepted. The left the home of McCoy's parents in Renton about midnight and started to drive to Maple Valley, some ten or twelve miles distant.

At the time the appellant E. J. Hughes was mayor of Renton and a deputy sheriff of King county; that appellant John Stewart was night watchman of Renton; and the appellant John Flynn was a private citizen, but had formerly been an officer of Renton.

It had been reported on that day to the appellant Hughes that an automobile load of intoxicating liquors being transported from Kent to Issaquah would pass through Renton that night between 11 and 2 o'clock, and under directions from Hughes, Stewart, Flynn, and the other defendants in the case below who have not appealed assembled on a public bridge over Cedar river in Renton for the purpose of stopping and searching any automobile suspected of containing intoxicating liquor; and if such liquor should be found, of taking the persons then in possession of it into custody and having them prosecuted.

Before assembling on the bridge for the purposes stated, the appellant Hughes asked the advice of a lawyer who had been for six terms city attorney of Renton and a member of the Legislature, and was advised by him to the effect that if an automobile or automobiles stopped at the request of the officers, they (the officers) might search it, and if they found liquor in unlawful quantities, they might take into custody the persons having the possession of it, but upon no account to use any force or violence.

The appellant Hughes stationed himself a short distance from the bridge in order to watch automobiles going toward the bridge, and to give a signal by whistle to the officers on the bridge to stop any such automobile which he might suspect of containing intoxicating liquor. None of the persons so acting were armed with any warrant against any person whomsoever.

As the automobile in which McCoy and respondent Elizabeth E. Mitchell were riding approached the bridge, the appellant Hughes gave to the officers on the bridge the appointed signal to stop them; and two of the officers started toward the automobile displaying a flashlight, and one or both of them shouted an order to stop. They were not in uniform, and did not display any badge nor announce that they were officers of the law, or what their purpose was. Mrs. Mitchell had never known any of them, and Mr. McCoy, while he had known most of them, testifies that he did not recognize them in the darkness. Both McCoy and Mrs. Mitchell testified that they believed it was holdup.

When the first two officers stepped toward the automobile and gave the order to stop, the driver, McCoy, instead of stopping, speeded up the automobile to escape, as he testifies, the supposed highwaymen. As the automobile passed the first two officers, it was met by two more officers, one of whom had a red light, with which he attempted to flag the automobile. But the driver did not stop, and passed so close to the man with the red lantern as to nearly run him down. At about that time one of the officers (Dalehart), who was one of the first officers to meet the car and give the order to stop, began running after it, shouting 'Stop!' and fired four or five shots at the automobile from a 38-caliber revolver, intending, as he testifies, to hit the tire of the automobile, cause it to deflate, and impede the progress of the car so that it would stop or might be overtaken. At about the time the shots were fired the automobile passed down the incline at the further end of the bridge, and two of the shots passed through the upper part of the automobile, one striking McCoy in the back, inflicting only a nominal injury, and the other bullet struck Mrs. Mitchell a little below her right shoulder blade, passed in an upward direction through her body, and out at the side of her throat. McCoy drove to a nearby house, reported a holdup, that the lady with him had been shot, and then, as she was unconscious, he hastened back and took her to the Renton hospital.

The trial court found:

'The defendants Hughes, Stewart, Flynn, and Dalehart concerted and assembled together for the common purpose and with the joint intent of stopping at night on a public highway and without a warrant any automobile which they suspected of containing intoxicating liquor being conveyed in violation of law, and, if such liquor should be found, of prosecuting the person or persons in possession thereof, and at the time of the firing of said shots were stationed as aforesaid and were engaged in said common purpose. Although the firing of said shots was not intended or contemplated by any one except Dalehart, they were fired by him in pursuance of the aforesaid common purpose and joint intent, namely, the stopping of said automobile as aforesaid.'

Judgment was entered in favor of the respondents and against the appellants and the defendant Peter Dalehart for the sum of $4,000, from which judgment this appeal is taken.

It appears to be admitted that the appellants combined to wait upon the bridge or highway and intercept and stop or attempt to stop travelers thereon for the purpose of finding some person in the act of violating the law; and it becomes necessary to inquire first whether this was an unlawful act. We know of no law in force in this state which will justify these acts. No statute exists which authorizes any such action without a warrant, and we think no court has held that such facts justify an arrest or an attempted arrest at common law without a warrant. The rule covering an arrest for a misdemeanor without a warrant is well stated in the following quotation:

'Although the defendant seeks to justify his conduct on the ground that he was an officer making a legal arrest and using no more force than was necessary, the law is well settled that even an officer may not arrest for a misdemeanor, without a warrant, on information or suspicion, unless the misdemeanor was actually committed in his presence.' Caffinni v. Hermann, 112 Me. 282, 91 A. 1009.

We think it follows, then, that the appellants, no matter how laudable their intent or how justifiable their motive, combined to do an unlawful act.

But they contend that even so the act which they combined to do was not the proximate cause of the injury complained of, and cite an extract from the opinion of the court in Milwaukee, etc., Ry. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256:

'But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.'

What is meant by 'wanton wrong,' as that expression is used in the citation given above? Webster's New International Dictionary defines 'wanton' as 'reckless; heedless; malicious; as, wanton mischief.' And Bouvier's Law Dictionary defines 'wantonly' as 'done in a licentious spirit, perversely, recklessly, without regard to propriety or the rights of others; careless of consequences, and yet without settled malice.'

While the acts of appellants might not be wanton against a person actually found violating the law, yet as against the respondent who was peacefully and lawfully upon the public highway, were not the acts complained of reckless, heedless, and done without regard to her rights? Without attempting a definite answer to that question, because unnecessary to the decision of this case, it would yet seem that in law, and as applied to the rights of the respondent, the acts complained of might well be held to be wanton. Whether wanton or not, the going upon the highway and unlawfully attempting to stop the respondent in this case appears to be the proximate cause of the injury which she received.

But say the appellants, the shooting was not agreed upon in advance; in fact, they had been advised not to use any violence, and the appellant Hughes had specifically warned all the others to use no force or violence, and that the shooting was caused by some wild impulse in the mind of the defendant Dalehart who fired the shot.

In the language of the United States Supreme Court in the case of Milwaukee, etc., Ry. Co. v. Kellogg, supra, which was cited and relied upon by the appellants, from which we have already quoted, will be found the answer to this proposition:

'The true rule is, that what is the proximate cause of an injury is

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