Peterson v. Cleaver

• Decision Date: 13 March 1928
• Citation: 124 Or. 547,265 P. 428
• Parties: PETERSON v. CLEAVER ET AL.
• Court: Oregon Supreme Court

265 P. 428

124 Or. 547

PETERSON v. CLEAVER ET AL.

Supreme Court of Oregon

March 13, 1928

Department 1.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Action by Mrs. Georgie Peterson against George L. Cleaver and another. Judgment for defendants, and plaintiff appeals. Reversed, with directions.

Plaintiff sues for malicious prosecution; the complaint states two causes of action. The questions presented to us arise upon a demurrer to the complaint, founded upon the contention that it fails to state a cause of action. The lower court sustained the demurrer; plaintiff appeals.

After alleging that the defendant George L. Cleaver is the prohibition commissioner of the state of Oregon, and that the defendant Fidelity & Deposit Company of Maryland executed his surety bond, the complaint charges that on the 24th day of December, 1923, Cleaver, "acting under color of his office and as such prohibition commissioner, with design and intent to harass and annoy this plaintiff and with willful wanton, and reckless disregard of the feelings and rights of this plaintiff, did, without probable cause therefor, cause an affidavit to be filed in the district court of the state of Oregon for Multnomah county," averring that there was in the home of the plaintiff a quantity of intoxicating liquors, to wit, whisky, and prayed for a search warrant. Further, it charges that the defendant Cleaver procured the search warrant, and--

"That thereafter said defendant, as such prohibition commissioner directed and caused certain of his agents and inspectors to execute said search warrant by forcibly entering into the home and residence of this plaintiff, known as No. 367 Vancouver avenue, in the city of Portland, Or., and directed and caused said agents and deputies in the execution thereof to search said home by ransacking and prying into plaintiff's living quarters, furnishings, furniture equipment, clothing, supplies, private belongings and appurtenances thereunto belonging, and did cause and direct said officers and agents to leave no thing or article in or about said premises without examination and investigation thereof; that said defendant so directed and caused said search to be made on Christmas Eve of the year. 1923."

The complaint continues to the effect that the proceedings under the search warrant were terminated in favor of the plaintiff and sets forth a copy of the return to the effect that no intoxicating liquors were found. It then avers:

"That each and all of the aforesaid acts of said defendant prohibition commissioner were done and performed with reckless disregard of the rights of this plaintiff and with malicious intent to harass plaintiff and to invade the privacy of her home and home life. That each and all of the aforesaid acts were done and caused to be done without any probable cause, and with knowledge and means of knowledge on the part of said prohibition commissioner of all the aforesaid facts. That this plaintiff did not have any whisky or other intoxicating liquors on said premises or otherwise."

The complaint alleges damages. The affidavit which constituted the foundation for the search warrant was not accompanied by a deposition, and recited only "that there is * * * in a certain building at No. 367 Vancouver avenue * * * whisky." It related no other circumstances.

The second cause of action alleges substantially the same matter with the exception that it omits the averments concerning the search warrant, and, in language somewhat amplified, charges that the defendant Cleaver conducted a "raid" upon her premises. Both defendants contend: (1) That the complaint fails to charge malice; (2) that under the statutes creating the office of prohibition commissioner, the various deputies and inspectors comprising the personnel of his staff are not in fact his agents, and that accordingly he is not responsible for their actions; (3) that he is a quasi judicial officer and hence no liability attaches to his acts. The defendant bonding company, in addition to the foregoing contentions, claims that the complaint fails to disclose that the alleged acts of Cleaver were performed by virtue of his office.

James H. Ganoe, of Portland, for appellant.

Elisha A. Baker, and Samuel B. Weinstein, both of Portland, for respondents.

ROSSMAN, J. (after stating the facts as above).

The constitutional provisions which safeguard the home against unreasonable searches and seizures are so well known that we need not quote therefrom. This court, in harmony with those of other jurisdictions, has held that an action for malicious prosecution may be maintained by one whose premises have been searched pursuant to a warrant obtained maliciously and without probable cause. Thus Chief Justice Burnett, speaking for this court in Nally v. Richmond, 105 Or. 462, 209 P. 871, said:

"It is well supported by authority that to cause a search-warrant to be issued maliciously and without proper cause, is malicious prosecution for which an action will lie."

In Krehbiel v. Henkle, 142 Iowa, 677, 121 N.W. 378, the court said:

"The right of the citizen to security in person and property against wrongful seizures and searches is one which the law has ever zealously safeguarded and has express recognition in our State Constitution. * * * That a violation of this right without reasonable ground therefor gives the injured party a right of action is thoroughly well settled."

In Spangler v. Booze, 103 Va. 276, 49 S.E. 42, 1 Ann. Cas. 995, the court said:

"A learned author, speaking of search warrants, has remarked that 'there is not a description of process known to the law, the execution of which is more distressing to the citizen. Perhaps there is none which exerts such intense feeling in consequence of its humiliating and degrading effects.' Archbold's Cr. Pr. & Pl. vol. 1, p. 131. It would be a reproach to our jurisprudence if such a prosecution could be inaugurated and carried forward maliciously and without probable cause, and the innocent victim have no remedy. We are of opinion that the declaration in judgment states a good cause of action, and that the plaintiff was entitled to a trial on the merits of his cause."

This case is annotated.

To similar effect, see Chicago, etc., R. Co. v. Holliday, 30 Okl. 680, 120 P. 927, 39 L. R. A. (N. S.) 205, case well annotated. To the same effect, and for a further collection of authorities, see Cornelius, Search and Seizure, § 323.

The authorities are agreed that the five elements comprising this cause of action are: First, that a prosecution was commenced against the plaintiff; second, that it was instituted or instigated by the defendant; third, that the prosecutor was actuated by malice; fourth, that the prosecution has been finally terminated in the plaintiff's favor; and, fifth, that it was instituted without probable cause, See Chicago, etc., R. Co. v. Holliday, supra. It is the contention of the defendant that the element of malice is not disclosed by the complaint.

Let us first consider whether the complaint alleges that the act was maliciously performed. The complaint avers that the defendant Cleaver, "with design and intent to harass and annoy this plaintiff, and with willful, wanton, and reckless disregard of the feelings and rights of this plaintiff, did, without probable cause therefor," cause the affidavit for the search warrant to be filed. Further:

That the defendant Cleaver "directed and caused certain of his agents and inspectors to execute said search warrant by forcibly entering into the home and residence of this plaintiff, * * * and directed and caused said agents and deputies in the execution thereof to search said home by ransacking and prying into plaintiff's living quarters, furnishings, furniture, equipment, clothing, supplies, private belongings and appurtenances thereunto belonging, and did cause and direct said officers and agents to leave no thing or article in or about said premises without examination and investigation thereof. * * * That each and all of the aforesaid acts of said defendant prohibition commissioner were done and performed with reckless disregard of the rights of this plaintiff and with malicious intent to harass plaintiff and to invade the privacy of her home and home life. That each and all of the aforesaid acts were done and caused to be done without any probable cause, and with knowledge and means of knowledge on the part of said prohibition commissioner of all the aforesaid facts."

The defendants, instead of challenging the truthfulness of these charges by denying them, have admitted them by interposing a demurrer. The demurrer raises no question of fact; its sole function is to submit the proposition of law, whether an officer who has thus conducted himself is guilty of malice. Section 2396, Or. L., defines the word malice thus:

"The terms 'malice' and 'maliciously,' when so employed, import a wish to vex, annoy, or injure another person. * * *"

In Gee v. Culver, 13 Or. 598, 11 P. 302, Mr. Justice Lord, on behalf of the court, defined quite extensively the component elements of malice; the language there set forth is approved and amplified in Stamper v. Raymond, 38 Or. 16, 62 P. 20, and again in Roberts v. Cohen, 104 Or. 177, 206 P. 295. We are satisfied with what is there set forth, and believe that the definitions of malice, previously announced by this court, when applied to the recitals of the complaint, indicate that the defendant Cleaver's actions were actuated by malice.

The mere fact that Cleaver did not sign the affidavit applying for a search warrant, and did not serve the process personally, does not relieve him from liability if he conducted himself as alleged in the complaint. Thus it was said in ...