Murrey v. Kelso

• Decision Date: 09 November 1894
• Parties: MURREY v. KELSO.
• Court: Washington Supreme Court

38 P. 879

10 Wash. 47

MURREY v. KELSO.

Supreme Court of Washington

November 9, 1894

Appeal from superior court, Lewis county; M. J. Gordon, Judge.

Action by M. E. Murrey against John Kelso, impleaded with another. Judgment for plaintiff, and defendant Kelso appeals. Reversed.

Edward F. Hunter, for appellant.

W. I Agnew and S. C. White, for respondent.

HOYT J.

This action was brought against appellant and one Webster to recover damages for malicious prosecution. The injury complained of was that plaintiff had been arrested, charged with grand larceny, upon the complaint of said Webster, who it was claimed, was the agent of appellant. Numerous exceptions were taken during the progress of the trial, and errors founded thereon have been argued here, but the conclusion to which we have come as to the force of the evidence introduced upon the trial renders it unnecessary for us to consider them. There is no evidence in the record tending in the least degree to connect the appellant with the proceeding for the arrest of the plaintiff, except the fact that he had employed said Webster to search for certain property which he had lost, and to take all legal steps necessary for its recovery. There is not a particle of proof tending to show that he authorized or directed the institution of the proceedings for the arrest of the plaintiff. The most that appeared from the entire case was that he had employed Webster as his agent to do what he lawfully could in the prosecution of his business. This being so, it is clear that he would not be responsible for an illegal act of said Webster, as he was authorized only to do legal acts.

In order to sustain the action for malicious prosecution, there must be positive wrong on the part of the defendant, either through something which he has done himself or which he has authorized. There was nothing unlawful in the employment by the defendant of Webster as his agent for the purposes for which he was employed. Hence from the fact of such employment no wrong could be imputed to the appellant and, since some wrong must be brought home to him before he can be made liable in this action, there was an absolute failure to prove an element necessary to establish liability on his part. It is true that there were some statements made by the appellant after the institution of this suit put in evidence against his objection, but we are unable to see that they tended in any...