Peasley v. Puget Sound Tug & Barge Co., 28495.

Citation13 Wn.2d 485,125 P.2d 681
Decision Date09 May 1942
Docket Number28495.
CourtUnited States State Supreme Court of Washington
PartiesPEASLEY v. PUGET SOUND TUG & BARGE CO.

Department 1.

Action for malicious prosecution by Jess Peasley against the Puget Sound Tug & Barge Company. There was a verdict for plaintiff and from a judgment granting defendant's motion for judgment notwithstanding the verdict and dismissing the action, plaintiff appeals.

Reversed with directions.

Appeal from Superior Court, King County; Chester A. Batchelor, Judge.

Tyre H Hollander, of Seattle, for appellant.

Bogle Bogle & Gates and Stanley B. Long, all of Seattle, for respondent.

STEINERT Justice.

Plaintiff brought suit to recover damages from defendant for malicious prosecution. Trial Before a jury resulted in a verdict in plaintiff's favor, but the court thereafter granted defendant's motion for judgment notwithstanding the verdict and dismissed the action. Plaintiff has appealed.

On March 17, 1939, James Cary, an employee of respondent Puget Sound Tug & Barge Co., subscribed and swore to a complaint Before a justice of the peace, charging that on the preceding day appellant, Jess Peasley, had committed the crime of interfering with, preventing, or obstructing the search for, and the retaking of, branded logs. Under Rem.Rev.Stat. § 8381-11 , the crime charged constitutes a gross misdemeanor, which by Rem.Rev.Stat. § 2267, is made punishable by imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both.

A warrant for Peasley's arrest was issued and he was taken into custody. He remained in jail for a period of twenty-four hours and then secured his release by posting the required bond. He was tried Before the justice of the peace on March 30, 1939, and was acquitted of the criminal charge. On December 13, 1939, he instituted the present action, against respondent, for malicious prosecution, and at the trial thereof in the following year the jury returned a verdict in his favor in the sum of five hundred dollars. Respondent thereupon moved for a judgment notwithstanding the verdict, basing its motion upon seven distinct grounds, of which we note only the following: (1) that appellant had failed to sustain the burden of proving malice and want of probable cause on the part of respondent in preferring the criminal charge; (2) that respondent's employee, Cary, prosecuting witness in the criminal action, had made a full, fair, true, and complete disclosure to the prosecuting attorney for King county of all known facts and had been directed by that officer to sign the criminal complaint; (3) that it appeared from the evidence that appellant was guilty of the crime charged; (4) that the evidence established, further, that, at the time of committing the crime of which he was accused in the criminal complaint, appellant had also committed the crime of assault in the second degree; that full disclosure of the additional offense had likewise been made to the prosecuting attorney; but that the latter had elected only to charge appellant with the crime of interfering with the search for, and the retaking of, branded logs; and (5) that the evidence conclusively established that there was probable cause for criminal proceedings against appellant upon the basis of either one, or both, of the offenses.

The trial court granted respondent's motion, but solely upon the ground that at the time of the alleged interference with the retaking of the logs in question, and as part of the same transaction, appellant had 'committed an offense with a firearm or deadly weapon'; that the commission of that offense constituted probable cause for his arrest and prosecution, even though he was not charged with that particular crime; and that it therefore appeared, as a matter of law, that appellant was not entitled to recover upon his suit for malicious prosecution. It appears from the trial judge's memorandum opinion that he was of the view that appellant had violated Rem.Rev.Stat. § 2559, which makes it a misdemeanor to aim a gun, whether loaded or not, at or toward any human being. It is not clear whether the judge also believed that appellant had committed the crime of assault in the second degree, although both parties to this appeal seem to assume that he did so hold.

The case comes to us on a limited record only. The statement of facts is certified merely to contain all matters pertaining to the specific questions on which appellant bases his appeal, namely, whether or not he committed the crime of second degree assault at the time complained of the criminal complaint, and whether or not, as a matter of law, he thereby became barred from recovery upon his action for malicious prosecution. The court's instructions to the jury are not Before us, and we must therefore assume, for the purposes of this appeal, that they were adequate and correct.

The verdict of the jury established the fact that, under the instructions given by the court, there was a want of probable cause for charging appellant with the crime of interfering with the search for branded logs and the seizure thereof. We are not now asked to determine that, as a matter of law, there was probable cause for instituting prosecution for the particular crime charged, and we could not do so in any event, in the absence of a complete record.

The evidence as presented by the limited record and the inferences to be drawn therefrom are to some extent in dispute, but since this matter comes to us on an appeal from a judgment notwithstanding the verdict, we must view the evidence in the light most favorable to appellant. However, as will appear later, that requirement does not of itself alone determine or dispose of all the issues with which we are here concerned.

We shall first refer to appellant's testimony regarding the events leading up to the criminal charge. Peasley, a man past seventy years of age at the time of the trial of the present action in 1940, owned a mill site on Duwamish waterway in Seattle, together with the adjacent shorelands, and lived in the largest of three houses located on the property. In the spring of 1934, the Foss Tug Co., hereinafter referred to as the Foss company, allowed a raft of its logs to get out of control, and in consequence thereof Peasley's log-haul was torn down and his mill damages. For the purpose of enabling Peasley to repair the damage, the Foss company delivered to him eight of its own boom sticks. Peasley was to furnish the labor required in the work of repair, and any logs left over were to be picked up later by the Foss company, Peasley being instructed at the time, however, not to let anyone take them away. Owing to the fact that Peasley was in poor health, and to the further fact that he ran short of money, due to the closing of the bank where he kept his funds, the repair work was not performed, and so the logs lay anchored in the water on his premises until, and after, the time of the events about to be narrated.

Shortly after New Year's day, 1938, Cary, the employee of respondent, appeared upon Peasley's premises and inspected the logs. Peasley did not know Cary at that time nor did he learn his identity until March, 1939, when Cary appeared as prosecuting witness against Peasley in the criminal action out of which this suit has arisen. On the day of his visit, Cary offered to buy the logs, but Peasley told him that he could not sell them. Later that spring, Cary drove into Peasley's yard and then went upon the raft of logs. At the same time, two other men came along in a gas boat from which they launched a row boat, and proceeded to the logs with pike poles. As Peasley emerged from his house Cary indicated that they were going to take some of the boom sticks belonging to the Foss company and began to point out to the other men several of the logs. On seeing Peasley, Cary asked him whether he had a telephone. Peasley told him that he did not have a phone, but directed him to a place where he might find one Cary then left, apparently for the purpose of telephoning, but did not return. After waiting a while, the other two men also departed, in their boat.

Late that fall, Cary came back to Peasley's place and said he had come to get two of the boom sticks. Peasley reiterated that the logs belonged to the Foss company and were not for sale, and directed Cary to a nearby timber company where he might buy any kind of boom sticks he wanted. Cary then went away, but on March 16, 1939, at about 10 a. m., he again returned and parked his car alongside Peasley's house. At the same time, two other men came up with a tugboat and the three men began to take the boom sticks out. Peasley was sick in bed at the time, but a neighbor, Richard Jacobson, observing what was taking place, came to Peasley's house, aroused him, and told him that somebody was taking the logs. Peasley then went outside and, according to his testimony, the following colloquy took place:

'I came out there and here is this same man, and I said, 'What are you doing here?' And he said, 'I am taking these logs out of here.' And I said, 'Have you got an order from the Foss Company?' And he said 'I don't need it,' and I said 'Certainly, you have to have an order from the Foss Company; you will get me in bad. I don't want to pay for these old boom sticks laying here.' [He said] 'Well, that is your business, and not mine,' and I said, 'Who are you, anyway?' And he said 'None of your business,' and I said 'You get out of here or I will get a shotgun and you will get out of here,' and of course he went, he got in the car and drove away.'

Immediately upon telling Cary to get off his premises, appellant went hurriedly into his house and procured a shotgun. Upon his return some...

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  • Bradford v. City of Seattle
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    • U.S. District Court — Western District of Washington
    • 4 Abril 2008
    ...malicious prosecution claim cannot not be disposed of on the basis of probable cause. See also Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 498, 125 P.2d 681, 688 (1942) ("A prima facie case of want of probable cause is established by proof that the criminal proceedings were dism......
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