Ulvestad v. Dolphin ( 1929 )

I am unable to concur with the prevailing opinion as to the liability of the chief of police and his surety.

The chief of police, the bond and the surety are identically the same as were involved in Pavish v. Meyers, 129 Wash. 605,225 P. 633, 34 A.L.R. 561.

In the above case, this court, in an En Banc decision, concurred in by all but one judge, held that the chief of police was not liable for a wrongful arrest by a policeman, and, the chief of police not being liable, his surety was therefore not liable.

In a later case, Nunn v. Turner, 133 Wash. 654,234 P. 443, we held the chief of police and his surety liable for false imprisonment, where the chief of police had directed police officers to arrest the person they arrested and detain him for investigation, without any charge having been made against him; and further held that the chief of police could not escape liability from the fact that he was not personally present at the time the police officers carried out his commands.

In the instant case, the evidence discloses no orders or instructions from chief of police Severyns to arrest, detain or imprison appellant, or that the chief knew anything about it until after appellant had been released.

It is sought to distinguish this case from the Pavish case because of the Seattle charter provision that the chief of police is made the keeper of the city prison. That should make no difference. It was approved in the Pavish case, as the general rule, that a different rule prevailed in the case of the chief of a municipal police department than obtains respecting sheriffs and their deputies, even though the chief of police is charged with the duty of selecting the members of the force; that he is not responsible for their acts unless he has directed such acts to be done or has personally co-operated in the offense, for each policeman is, like himself, a public servant (citing authorities). It is also well known that the chief of police does not personally keep the city prison. He appoints a jailer for the purpose. He should no more be held responsible and liable for the acts of a jailer of which he has no knowledge, than he should be for the acts of a policeman of which he has no knowledge.

The same Seattle charter also contains provisions that were referred to in the Pavish case, to the effect that the chief of police shall have and discharge like powers and be subject to like responsibilities as the sheriff of King county in similar circumstances; notwithstanding that, we held that he was not responsible and liable in the same degree as the sheriff of King county would be.

From our own cases and others which could be cited, in my opinion, the order discharging the chief of police and his surety in the court below should be affirmed. Upon this matter, I dissent, although concurring in the remainder of the decision as to the result.

BEALS and PARKER, JJ., concur with HOLCOMB, J.