Ton v. Stetson

• Decision Date: 22 August 1906
• Citation: Ton v. Stetson, 43 Wash. 471, 86 P. 668 (Wash. 1906)
• Parties: TON v. STETSON.
• Court: Washington Supreme Court

86 P. 668

43 Wash. 471

TON v. STETSON.

Supreme Court of Washington

August 22, 1906

Appeal from Superior Court, King County; John B. Yakey, Judge.

Action by John Ton against W. C. Stetson. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Frank H. Knapp and C. R. Hawkins, for appellant.

Allen Allen & Stratton, for respondent.

CROW J.

This is an action of malicious prosecution, instituted by the appellant, John Ton, against the respondent, W. C. Stetson. The appellant alleged that on July 8, 1904, the respondent falsely, maliciously, and without probable cause made a complaint before one John B. Gordon, a justice of the peace in and for Seattle precinct, King county, Wash that a C. Parker double-barreled shotgun and certain other personal property of said respondent had been, on the 27th day of June, 1904, stolen, taken, and carried away from respondent's possession; that said respondent verily believed said goods or a portion thereof were concealed in the house of said appellant in Seattle, King county, Wash.; that upon said complaint the respondent maliciously and without reason or probable cause procured said justice to issue a search warrant directed to any sheriff or constable of King county, Wash.; that said respondent, under color and pretense of the execution of said warrant, caused the house and premises of the appellant to be entered and searched for said goods, and caused the appellant to be taken and imprisoned in the city jail of the city of Seattle from 10 o'clock a. m. of July 10, 1904, until 2 o'clock p. m. of July 11, 1904, when said justice, having examined appellant, caused him to be discharged; that the respondent had not further prosecuted said complaint; and that, in procuring said warrant, arrest, imprisonment, and prosecution of appellant, the respondent acted maliciously, without probable cause, and with the intention to injure the appellant in his good name, and to bring him into public disgrace, and to injure his business and credit. Respondent admitted the making of the original affidavit, but denied all the other allegations of the complaint. He also pleaded an affirmative defense tending to show probable cause and want of malice. Upon trial before a jury, a nonsuit was granted, and the action was dismissed. From said judgment this appeal has been taken.

The only assignment of error is that the trial court erred in granting the nonsuit and dismissing the action. From the evidence it appears that for some six weeks prior to June 27, 1904, the appellant was an employé of the Stetson Mill Company, with which the respondent seems to have had some business connection. On said day the mill was partly destroyed by fire. Appellant, with many other employés, assisted in fighting said fire. It appears that respondent claimed to have had the gun and other personal property in an office near said mill; that immediately after the fire said property was missing; and that the appellant, although not discharged, did not return to work for about one week, when he worked but a few hours, or about one day, and again quit without being discharged and without explanation. He contended on the trial that he was seeking work elsewhere, being dissatisfied with that which he had at the mill. On July 8th, the respondent appeared before Magistrate George and handed him an affidavit for a search warrant, which affidavit had been prepared by the prosecuting attorney of King county, and which respondent then signed and verified. Respondent appears to have had nothing further to do with the proceedings or prosecution. The respondent and appellant were not personally acquainted. They never had any conversation except on one occasion, when the respondent made some jocular remark to appellant. The magistrate kept no record of the proceeding on his docket. The only original paper introduced in evidence was the affidavit, which was signed and verified by respondent. It was necessary to introduce secondary evidence to show the further proceedings. The magistrate testified that the respondent had stated when making the affidavit that he did not want any one arrested, but merely wished to find his property; that he gave the magistrate no directions whatever as to further proceedings; that said search warrant was issued in the manner provided by statute; that on the morning of July 11th, when the appellant appeared, the magistrate, upon being informed that no property had been found, discharged him; that respondent did not appear at said hearing; and that no witnesses were examined. It further appears from the evidence that on July 12th two men, whose names are not given, wearing citizens' clothes, appeared at the door of appellant's house and called him out for a private interview; that in this interview they told appellant the respondent claimed to have lost the gun and other property, and that they believed he--appellant--had it in his possession; that appellant protested his innocence, and denied all knowledge of the theft or the property; that after some conversation the visitors told appellant they were officers; that they had a search warrant, and that he was under arrest; that thereupon respondent invited them into his house, which they had not before entered, and asked them to make a search; that they declined to do so, no search being made; and that shortly thereafter they took appellant, whom they had placed under arrest, to the city jail, where he was confined until the morning of July 11th. Witnesses were also introduced to show appellant's good character. The above is the substance of the testimony introduced by the appellant.

From the allegations of his complaint it appears that appellant is seeking to recover damages, on the theory that respondent has been guilty of malicious prosecution. To succeed it was necessary for him to show (1) want of probable cause; (2) malice upon the part of the respondent; and (3) that the criminal proceeding has been determined in his favor or abandoned. There is no question but that the criminal proceeding has been abandoned. We think it questionable whether the evidence was sufficient to show want of probable cause, but will assume for the purposes of this case that it was sufficient to make a prima facie showing. It was, however, necessary to show malice also. The appellant contends that, if probable cause has been shown, malice may be inferred therefrom; citing Noblett v. Bartsch, 31 Wash. 24, 71 P. 551, 96 Am. St. Rep. 886, and Charlton v. Markland, 36 Wash. 40, 78 P. 132. In Noblett v. Bartsch the issue as to whether malice was proven was not before this court. We only announced the rule that the showing of a discharge by a committing magistrate is evidence of want of probable cause sufficient to make a prima facie case, but does not shift the burden of proof. In discussion we further said: 'The very gist of an action for malicious prosecution is want of probable cause. The truth of other material allegations,...