Pallett v. Thompkins

• Decision Date: 21 October 1941
• Docket Number: 28395.
• Citation: 118 P.2d 190,10 Wn.2d 697
• Court: Washington Supreme Court
• Parties: PALLETT v. THOMPKINS et al.

118 P.2d 190

10 Wn.2d 697

PALLETT v. THOMPKINS et al.

No. 28395.

Supreme Court of Washington

October 21, 1941

Department 2.

Action by Thomas H. Pallett against James Thompkins and Jane Doe Thompkins, his wife, G. J. Pero and Jane Doe Pero, his wife and others, arising out of the arrest of plaintiff by defendant's James Thompkins and G. J. Pero upon a warrant issued by a justice of the peace. From a judgment for plaintiff, the defendants appeal.

Reversed and remanded with directions.

Appeal from Superior Court, King County; William J. Wilkins, judge.

John D MacGillivray and James W. Mifflin, both of Seattle, for appellants.

Smith Matthews & Wilkerson, John G. Matthews, Jr., and Carl P. Zapp, all of Seattle, for respondent.

BLAKE Justice.

Plaintiff was arrested on May 6, 1939, by defendants Thompkins and Pero, deputy sheriffs of King county, upon a warrant issued by a justice of the peace of that county. The warrant was issued upon a complaint, sworn to by Thompkins, charging plaintiff with the crime of petit larceny. Plaintiff was subsequently brought to trial and acquitted of the charge. He then brought this action for damages against the sheriff, the surety on his official bond, and the two deputies. The cause was tried to a jury, which returned a verdict in favor of plaintiff. From judgment on the verdict, defendants appeal.

There is sharp disagreement as to the character of the action set up in the complaint. Appellants insist that it is a straight action for false imprisonment. If it is, of course the action must fail. An officer who makes an arrest under a warrant or process, valid upon its face, is not liable in an action for false imprisonment. Johnson v. Nelson, 146 Wash. 500, 263 P. 949, 56 A.L.R. 1035; Cavitt v. McCrite, 194 Wash. 684, 79 P.2d 637.

The court, however, treated the action as one for malicious prosecution and submitted it to the jury on that theory. The two actions, false imprisonment and malicious prosecution, are essentially different in character. False imprisonment is the unlawful arrest of a person without warrant, or by an illegal warrant, or a warrant illegally executed. If the action is instituted and maintained maliciously and without probable cause, it constitutes malicious prosecution. The gist of the action for malicious prosecution rests in malice and want of probable cause. Neves v. Costa, 5 Cal.App. 111, 89 P. 860; Dodson v. Solomon, 134 Fla. 284, 183 So. 825; Roberts v. Thomas, 135 Ky. 63, 121 S.W. 961, 21 Ann.Cas. 456; Reilly v. United States Fidelity & Guaranty Co., 9 Cir., 15 F.2d 314. To maintain the action, these elements must be alleged and proved While malice and want of probable cause are not, in terms, alleged in the complaint, the equivalent are, in a liberal view of the pleading, found in the following allegation: '* * * the defendants James Thompkins and G. J. Pero had no reasonable ground to believe that plaintiff had been guilty of any crime, although said defendants by false statements procured a purported warrant of arrest from J. E. McFarland, Justice of the Peace, for Renton Precinct, King County, Washington, * * *.'

A prima facie case of want of probable cause (from which malice may be inferred) is made by proof that the criminal proceedings were dismissed or terminated in plaintiff's favor. Noblett v. Bartsch, 31 Wash. 24, 71 P. 551, 96 Am.St.Rep. 886; Charlton v. Markland, 36 Wash. 40, 78 P. 132. But malice is not necessarily to be inferred from such prima facie showing of want ofprobable cause. Ton v. Stetson, 43 Wash. 471, 86 P. 668, 10 Ann.Cas. 369; Anderson v. Seattle Lighting Co., 71 Wash. 155, 127 P. 1108; Saunders v. First Nat. Bank of Kelso, 85 Wash. 125, 147 P. 894.

In the light of these rules, it may be conceded that respondent made out a prima facie case of want of probable cause, since the criminal proceedings terminated in his favor. The facts necessary, however, to establish probable cause present a question of law to be decided by the court. The existence of such facts is, of course, to be determined by the jury. But if facts sufficient to establish probable cause are shown and are undisputed, then the court should declare, as a matter of law, that there was probable cause and dismiss the action. Hightower v. Union Savings & Trust Co., 88 Wash. 179, 152 P. 1015, Ann.Cas.1918A, 489. A warrant may issue only upon evidence which would be competent in the trial of the offense Before a jury; and the facts must be sufficient to lead a man of prudence and caution to believe the offense had been committed. Ladd v. Miles, 171 Wash. 44, 17 P.2d 875.

Now with these rules in mind, let us examine the facts that were known to Thompkins and Pero and upon which they caused the warrant to issue. They and one Cope, another deputy sheriff, were charged with the duty of looking after the property of King county located at what was known as the Calhoun gravel pit. The county maintained a five or six-stall garage at the pit where county trucks...