[No. 14424.

Department Two.

April 4, 1918.]

#### K. D. Brabston *et al., Respondents,*v. J. E. Shrewsbury, *as Constable of Seattle Precinct, King County, et al., Appellants.**1*

Sheriffs and Constables — Action fob Negligence — Damages — Mental Anguish. Mental anguish and disgrace is not a proper element of damages for negligence on the part of a constable in breaking and leaving open a trunk in conducting a search for contraband liquor.

Same—Action fob Negligence—Evidence—Sufficiency. In an action against a constable for the loss of a brooch, through his negligence in breaking and leaving open a trunk in conducting a search for contraband liquor, the testimony of the prosecuting witness as to the loss of the brooch is insufficient to support the judgment, where it was so improbable as to be utterly incredible and was impeached by two disinterested witnesses and other circumstances.

Appeal from a judgment of the superior court for King county, Tallman, J., entered May 17, 1917, upon findings in favor of the plaintiffs, in an action in tort, tried to the court.

Reversed.

*Alfred H. Lundin, Edwin C. Ewing,*and *Peters & Powell,*for appellants.

*James Kiefer,*for respondents.

1

Reported in 171 Pac. 1012.

Holcomb, J.

Respondents had judgment upon a cause of action alleging negligence on the part of the officer in breaking and leaving open a trunk belonging to Mrs. Brabston, in conducting a search under a search warrant for suspected contraband liquor, in a hotel where respondents lodged, in North Bend, King county. There was an allegation of damage in the sum of $400 by reason of “mental anguish, humiliation, annoyance, and disgrace,” which the court properly *32refused to consider appropriate elements of damage in such action. It was alleged that a certain diamond brooch of the intrinsic value of $350 was contained in the trunk at the time it was forcibly opened and searched, and that it had been stolen from the trunk, after the search and before respondents returned home some hours later, by reason of the trunk being carelessly and negligently left unlocked.

No allegation or evidence connected the officer with the actual abstraction of the brooch. There was no evidence tending to trace the theft to any person. The evidence as to the loss of the brooch was solely that of Mrs. Brabston. She testified, in substance, that the brooch was seen by her in her trunk when she left the room at about six o’clock in the morning of the day of the search to go from North Bend to Seattle; that she locked the trunk; that, when she returned, about 8:15 or 8:30 in the evening of the same day, the trunk had been opened by detaching the two locks on it, and had not been closed entirely; that the brooch and the box containing it were missing, and in place thereof had been left a cheap paste imitation worth about ten cents; that the brooch was worth $350. She also testified that there was considerable other jewelry in the trunk aggregating in value approximately $2,000, none of which was taken.

We cannot and do not believe this tale. It taxes credulity beyond the limit. It passes belief that some person other than the officers who made the search—• who could have known nothing beforehand of it, since the deputy prosecuting attorney placed the search warrant in the hands of the officer after arriving at North Bend from Seattle about noon and the search of the premises occurred immediately—saw the brooch in its small box, purloined it after the officers had departed, substituted an imitation brooch in its place, *33and left $1,700 worth of other jewelry in the trunk untouched.

Although mindful of the rule applicable when the trial court has the opportunity of seeing, hearing, and judging of the credibility of the witnesses at first hand, we are also cognizant that Mrs. Brabston was an interested witness and the most interested person in the success of her cause; that she was undoubtedly smarting under the sense of injury, “humiliation and disgrace,” because of her effects having been searched for unlawful merchandise, no matter how lawful, technically, the search. • We also must consider and weigh the evidence upon the record *de novo,*as required by law.

Two officers, Shrewsbury and another constable, conducted the search, and a deputy prosecuting attorney stood by and observed. They testified that they opened the trunk by prying out three small nails in each of the two locks, which loosened the locks from the trunk; that they lifted the tray out, felt around in the lower part of the trunk, “found nothing for which they were searching,” replaced the contents of the trunk, replaced the tray in the same condition as before, closed the lid, replaced the locks, and inserted the three small nails in each as they were before except that the nails could not be clinched on the inside of the box of the trunk with the lid closed as they were before, but that outwardly the trunk and the locks had the same appearance as before they took off the locks; that, when they opened the trunk, no jewelry was visible in it; that they saw none. One of the constables was sued and the other was not, and the deputy prosecutor was not. Certainly, then, these two were, at least apparently, disinterested witnesses. There was some other evidence tending to show that Mrs. Brab*34ston had made statements tending to show that she had herself previously had her diamond brooch altered into ring settings; and that her husband objected to her keeping the brooch for personal reasons. The testimony of the principal witness for respondents, which stands alone as to the loss, being so thoroughly improbable as to be utterly incredible, we feel, upon the careful consideration thereof and of the whole record, that the preponderance of evidence does not support the findings of the trial court.

The judgment is therefore reversed.

Ellis, C. J., and Mount, J., concur.