Simmons v. Gardner
| Decision Date | 22 April 1907 |
| Citation | 89 P. 887,46 Wash. 282 |
| Parties | SIMMONS v. GARDNER et al. |
| Court | Washington Supreme Court |
Appeal from Superior Court, King County; Mitchell Gilliam, Judge.
Action by James Simmons against G. R. Gardner and the Seattle Transfer Company. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with instructions to dismiss.
Metcalfe & Jurey, for appellants.
John B Shorett and George H. Revelle, for respondent.
Action for malicious prosecution by James Simmons, plaintiff against G. R. Gardner and the Seattle Transfer Company, a corporation, defendants. A jury trial resulted in a verdict for the plaintiff, upon which judgment was entered. The defendants have appealed.
The Seattle Transfer Company for some years past has been engaged in the transfer and storage business in the city of Seattle having numerous employés, of whom the respondent, James Simmons, was one, and the appellant G. R. Gardner another the former being a packer of merchandise, and the latter a special detective. Early in January, 1906, the company learned that certain slot machines, which it held in storage had been forced open, and that about 2,000 slugs, of the value of $10, had been taken therefrom. Shortly thereafter, the appellant company, claiming it had information indicating that the slugs had been stolen by the respondent, Simmons, and another employé named Tracy, caused the appellant Gardner to make a complaint charging them with petit larceny. A warrant was issued, and they were arrested. The respondent, Simmons, was thrown into jail, where he remained for two or three days, until released on bond. About 10 days later, after learning that Tracy had six small children dependent on him, with no other person to care for them, appellants called upon the prosecuting attorney and asked his consent to dismiss the criminal prosecution against Tracy. They were accompanied by Tracy himself, and claim that he admitted his guilt, and implicated Simmons. The appellants further stated to the prosecuting attorney that, if Tracy was released, they did not think it would be just to prosecute Simmons, and asked for his discharge also. Both defendants were then discharged, with the consent of the prosecuting attorney, upon payment of costs by the appellants. The respondent, Simmons, thereupon instituted this action for malicious prosecution.
The appellants contend that the trial court erred in denying their motion for a directed verdict, made at the close of the evidence, and in support of such contention insist that the prosecution of Simmons was upon probable cause; that it was instituted after they had fully and truthfully stated all facts and circumstances known to them, to their own attorney, and also to the prosecuting attorney of King county, both of whom advised criminal prosecution; and that the prosecuting attorney drew the complaint upon which it was based. While they admit the criminal prosecution and its dismissal, they deny that it was without probable cause, or that it was malicious.
The respondent, after showing his arrest, imprisonment, and discharge, testified that he was innocent of the charge made, and denied that he had taken any slugs or knew of Tracy taking any. Tracy, who testified on behalf of respondent, denied that he knew of respondent taking or having any slugs. Respondent offered evidence to show that the appellant Gardner, accompanied by other parties, called upon him and Tracy at the jail, and questioned them separately as to a certain surveyor's instrument of considerable value which was missing from the warehouse, then stating that he cared nothing about the stolen slugs, but wanted to find the missing instrument. This evidence was denied by Gardner and the parties who were with him, although they admit that he did ask about the lost instrument. It does not appear that the appellants ever claimed that either Tracy or Simmons had taken or stolen the instrument. The appellants introduced evidence showing that, for some time prior to the arrest, continued pilfering had been in progress at the warehouse; that, in addition to other losses, several slot machines had been opened, and slugs taken therefrom; that Mr. Simmons, when intoxicated, had said to one Arnold, the company's foreman, 'Well, Arnold, old boy, you want to watch that man Tracy'; that, being asked why, he said, 'Well, old Jim ain't going to get in trouble, but I will tell you now that there is things going on that ain't right, and you had better watch that fellow Tracy'; that Simmons refused to make any further statement; that thereafter Tracy and Simmons were frequently seen together; that they visited different saloons, where Tracy played the missing slugs into the slot machines; that they drank on his winnings; that the slugs played by Tracy were of a peculiar design, identical with those missed from the warehouse, but not like any others known in the city; that they were afterwards taken from the machines where Tracy played them; that Tracy had been seen giving some of the slugs to Simmons, who played them in other machines; that Tracy had a key, which admitted him to the warehouse where the machines were stored; that appellants had told all these facts and circumstances to their attorney and to the prosecuting attorney fully and truthfully; and that the prosecuting attorney thereupon drew the complaint and advised the prosecution. The prosecuting attorney himself, as a witness for the appellants, confirmed these statements, detailing at length all of the information communicated to him. Witnesses were also introduced by appellants who testified that Tracy and Simmons had been seen frequently in saloons where Tracy played the slugs; that they were then drinking together; that the slugs were afterwards taken from the machines; that Tracy gave some of them to Simmons, who played them himself; that they had communicated all of this information to the appellants prior to the arrest; that Simmons and Tracy had access to the room where the machines were stored, Tracy having a key in his possession.
Upon this showing, the appellants contend they were entitled to a directed verdict, and insist, not only that these facts and circumstances of themselves were probable cause, but further contend that when they had fully and truthfully detailed to the prosecuting attorney all these facts and circumstances as known to them, and were advised by him to proceed, such showing constituted probable cause preventing recovery by the respondent. It is not the policy of the law that any citizen shall be wrongfully subjected to a criminal prosecution instituted with malice and without probable cause. It is,...
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In re Dissenting
... ... 9, p. 707 and notes, Matson v ... Michael, 81 Kan. 360, 105 P. 537, as annotated L. R ... A. 1915D p. 5, note III, general rule; Simmons" v ... Gardner, 46 Wash. 282, 89 P. 887, as annotated, L. R ... A. 1915D p. 16, note 2 p. 43, as to a question of law and ... \xC2" ... ...
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Wallace v. State
...p. 707, and notes; Michael v. Matson, 81 Kan. 360, 105 P. 537, as annotated, L. R. A. 1915D, p. 5, note III, general rule; Simmons v. Gardner, 46 Wash. 282, 89 P. 887, as annotated L. R. A. 1915D, p. 16, note 2, p. 43, as to a question of law and fact.” The prevailing opinion states that it......
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State v. Chenoweth
...interest in freedom from unfounded searches or arrests and society's interest in effective law enforcement. Simmons v. Gardner, 46 Wash. 282, 286, 89 P. 887 (1907) ("`It is for the best interests of society ... that any citizen who has good reason to believe that the law has been violated s......
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Wallace v. State
... ... 9, p. 707 and notes, Matson v ... Michael, 81 Kan. 360, 105 P. 537, as annotated L. R ... A. 1915D p. 5, note III, general rule; Simmons" v ... Gardner, 46 Wash. 282, 89 P. 887, as annotated, L ... R. A. 1915D p. 16, note 2 p. 43, as to a question of law and ... \xC2" ... ...