172 So. 655 | Ala. | 1937
Lead Opinion
The suit, by appellant, a member of the partnership known as "Five Mile Barbecue Stand," against appellee Graham, a deputy sheriff, and others, was to recover damages for the wrongful search of the plaintiff's premises by the defendant Graham and other deputy sheriffs.
Demurrers to the several counts (1, 2, and 3) of the complaint as amended, were overruled. Defendants replied with pleas 1 and 3. Plaintiff's demurrer to plea 3 was overruled as answer to counts 1, 2, and 3, and sustained as answer to count 4. Plaintiff refiled a replication to plea 3, and demurrer to the special replication was overruled. Issue being joined, the verdict and judgment was for the defendants.
Counts 1, 2, and 3 were for trespass; count 4, for a wanton wrong, in that the defendant Graham "did wrongfully, maliciously, and without probable cause therefor (under the color of his office), procure a search warrant," known to him at the time of its issue to be false and without foundation of fact. 21 R.C.L. p. 456, § 21. *542
When this case was before the court on former appeal (Walker et al. v. Graham et al.,
On the last trial the complaint was amended by striking out as a party plaintiff L. C. Walker, leaving only W. L. Walker as plaintiff; by striking out as parties defendant Harry N. Curl, J. Frank Dowis, Willam O. Downs, and United States Fidelity Guaranty Company, leaving as defendants only R. J. (Bob) Graham and Fidelity Deposit Company of Maryland, surety on Graham's official bond.
On the last trial, after the witnesses and one of the plaintiffs, L. C. Walker, had testified on direct examination for plaintiffs, and while L. C. Walker was on the stand for cross-examination, defendants' attorney introduced the search warrant in evidence, and without cross-examining plaintiff's witness Walker, rested defendants' case; plaintiff's attorney likewise resting his case. "Upon this evidence and no more the Court charged the jury orally." Defendants requested affirmative charges which were refused. The cause being submitted to the jury, without examination by defendant of any witness whatsoever, or any other testimony, resulted in a verdict for the defendants, from which plaintiff, W. L. Walker, appeals.
The burden of proof under such pleading rested upon the plaintiff. McMullen et al. v. Daniel,
It is further decided that in a joint action against an officer and the surety on his official bond, punitive damages are not recoverable. Such was the pleading as to Graham and the surety on his official bond, made defendants. Holland v. Fidelity Deposit Co. of Maryland et al.,
The court, in his general charge, defined the issues to be determined, and instructed the jury as follows:
"The plaintiff claims that on account of this search and seizure — I mean this search of his place of business, which was also his home — that it was invasion of his rights and an invasion of his home, and he claims that as a proximate consequence of that wrong, that wrongful search, there, that he was humiliated and chagrined and embarrassed, that there were people there, and that he was embarrassed and chagrined and suffered physical and mental pain and was injured in that regard.
"Now, gentlemen, damages of that character, there is no way to measure. Under the law we have no yardstick to give you gentlemen to determine what would be reasonable compensation for injuries of that character, in event you find for the plaintiff, and it is left to the sound discretion of you gentlemen trying the case to determine from all the evidence in the case what would reasonably compensate the plaintiff for any chagrin, embarrassment or humiliation or physical and mental pain that he suffered as a proximate consequence of the officers coming there on that occasion and making this search."
There was no error in giving defendants' charge No. 12. It stated the law of such a case when referred to the search warrant in evidence, which was in due form and issued by J. G. Brooks, ex officio judge of Jefferson county court of misdemeanors. The process appeared regular on its face, was issued by competent authority, and the deputy sheriff duly receiving the same was justified in executing the search warrant. Sections 10192, 10193, 10197, Code 1923; Walker et al. v. Graham et al.,
The replication to plea 3 avers that the warrant that defendant officer swore out was false and without any foundation in fact; that the officer "swore out said warrant solely out of malice and ill-will toward the plaintiffs, and for the purpose of injuring them in their business, well knowing at the time that the matters and things which he swore to in said warrant were untrue and without any foundation of fact." The plural as to the plaintiffs *543
in this replication was singularized, by amendments and eliminations in the pleading, to W. L. Walker, who testified in his own behalf. The trial court so limited the inquiry of fact as to said Walker by the general charge. Poole v. Fletcher,
Assignments of error 5 to 9, inclusive, relate to the rejection of plaintiff's evidence by the witness Yancey, who testified in substance that he knew the said Walker; was acquainted with the Five Mile Barbecue Stand on the date of October 25, 1930, and stopped there occasionally. Witness was asked, in effect, if he ever smelled any liquor when he went in the barbecue stand; if he saw any signs of drinking around there at any time; if he knew of any liquor being sold there at any time, and of anybody being drunk in that place at any time before this proceeding. The court sustained objection to the question: "From observation, all right, now, then, from what you talked with them in the community there, the general talk of the community, what was that in regard to that stand at that time?" To which there was exception by the plaintiff. Such inquiry was res inter alios acta as to Graham's action, and his and his surety's liability at the time he acted — when he swore out and executed the search warrant. It was not evidence of the nature of the information on which the officer acted in procuring the issue of the search warrant and in the execution thereof. McMullen et al. v. Daniel, supra.
In Gulsby v. Louisville Nashville R. Co.,
First, of malice: "Malice has been thus well defined by this court: 'Whatever is done willfully and purposely, whether the motive be to injure the accused, to gain some advantage to the prosecutor, or through mere wantonness or carelessness, if at the same time wrong and unlawful within the knowledge of the actor, is in legal contemplation maliciously done.' Lunsford v. Dietrich [
Second, of probable cause: "Probable cause was also defined in Lunsford v. Dietrich, supra, as follows: 'A reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged.' Mere suspicion and belief, even though honestly, bona fide entertained, of the guilt does not, as readily appears, alone, rise to the dignity of affording a basis for probable cause. It is essential that, at the time the oath or affirmation is taken or made, the actor then knew of facts or circumstances such as would have justified a reasonable and cautious man in believing that the accused was guilty. Lunsford v. Dietrich, supra. Less than that cannot be probable cause."
The test of probable cause is whether the information, on which the affiant acted in swearing out the warrant to justify his action in the respects here pertinent, was such as to lead a man of ordinary caution to so act, with impartiality and without prejudice, and with the conscientious belief that such cause existed for the action taken. Union Indemnity Co. v. Webster,
The questions which plaintiff sought to ask the witness Green — "Did you ever know of any liquor being sold at that stand at that time or prior thereto at any time?" and "Did you know of any report of liquor being sold at that stand prior to this raid that was made by the deputy sheriffs?" — were of like import to those denied and properly refused to the witness Yancey. To like effect, also, were the questions propounded to the witness Bryant, which were likewise rejected in evidence.
It is not shown that Graham had the information sought to be elicited when he swore out the search warrant. In such action, the main issue is whether the defendant swearing out the warrant had probable cause for such action. And on *544
the question of probable cause, the plaintiff was entitled to introduce proof of good reputation at the time in question. That is to say, the plaintiff had a right to show the general reputation in that community, at the time in question, of himself and his business on such issue of fact; information which brought to defendant's knowledge the want of probable cause in swearing out the warrant. Shea v. Cloquet Lumber Co. et al.,
The witness Bryant was asked: "Tell the jury what you know about the search that took place out there." The court sustained defendants' objection to said question, and the plaintiff excepted. If the ruling was in error, it was without injury. The matter was thereafter introduced by the further examination of that witness by plaintiff, the witness testifying as follows: "I went in the building, this man came in right behind me and immediately began searching; they immediately went to searching. I didn't know what they were searching for, but they went through everything in the store, in the ice box, and behind the goods on the counters, and they stayed there I don't know how long, but I stayed there the whole time they were there. * * * They looked in the show cases and they looked behind the goods stacked on the counters and they looked in some of the soft drink cases they had there stacked up, and then they went into a back room. I don't know what they did back there. I did not hear the searchers say anything there that they had found liquor. I did not see any liquor there. I did not smell any liquor there. I had been a patron there for quite a number of years, I expect from ten years back. * * * I was acquainted with the reputation of that stand in that community, the reputation of that stand was always good. I was acquainted with these two gentlemen that ran that stand, the Walker brothers, their reputation was always good."
And on cross-examination: "That search was made in the early afternoon. It was before — I think just before two o'clock, I am not sure, but I think so. I think it was between twelve and three o'clock. I drove up to the stand for some sandwiches. They searched the Frigidaire, looked among the counters, under the counters and behind the counters, looked in the show cases, examined some crates or cartons or empty bottles, they went in the back room. I did not see any liquor, and I did not smell any liquor. I don't know that they arrested anybody while I was there, the officers left there before I left. I don't know who else was there. There were several in there, I think. I didn't know who they were."
It has long been the rule that "The want of probable cause is a material averment, and though negative in its form and character, it must be proved by the plaintiff, by some affirmative evidence; unless the defendant dispenses with this proof, by pleading singly the truth of the facts involved in the prosecution." 1 Green1. Ev. §§ 80, 81, 78; O'Grady v. Julian,
The decisions have likened this kind of a suit, with its element of probable cause and its resulting damage — as for the loss of credit — to the wrongful suing out of an attachment, garnishment, or injunction, etc. Bradford et al. v. Lawrence,
In O'Grady v. Julian,
The rule, as applied to remote and recoverable damages in Massachusetts, Minnesota, and Texas, is thus stated: "(1) In an action by partners for damages from the issue of an attachment against them maliciously, and without probable cause, evidence of the disposition subsequently of the partnership property, including the appointment of a receiver thereof, in a suit for dissolution of the partnership, and the loss and shrinkage in the assets on the receiver's sale, is not admissible as such damages are too remote. Cochrane v. Quackenbush,
There are many assignments of error — 19 to 27, inclusive — as to how the search affected the business receipts, and as to the offer for sale of the business and its good will. Some of the questions were, in nature, a call for speculative damages, and were rightfully denied. O'Grady v. Julian,
In Bell et al. v. Seals Piano Organ Co.,
"Credit is a conclusion of fact, partly based on opinion founded more or less on reputation (Alabama State Land Co. v. Reed,
"It is a legitimate ground for the recovery of actual damages that there has been an injury to one's credit. Donnell v. Jones,
In this application of the rule there is pertinent analogy to the elements of damage sought to be shown in the instant case. See the many authorities from this and other jurisdictions collected in the note to 54 A.L.R. p. 451, and the note to 37 A.L.R. p. 660. In Donnell v. Jones et al.,
Such were the pertinent inquiries in the instant case.
There was evidence that at the time the reputation of the stand and its proprietors in that community was good. The plaintiff, as a witness, testified that during the two years he ran this business, and at the time of the execution of the search warrant, no liquor was kept or sold at such place and in that business, and that when the search was made no liquor was found on the premises. This made out a prima facie case for plaintiff, shifted the burden of proof to the defendants, and required them to go forward with the evidence. Absence of evidence to the contrary justified the submission of the questions of fact to the jury. The defendants did not offer other evidence than the affidavit and search warrant, which were not sufficient to meet the prima facie case made by plaintiff. For this failure, and the exclusion of plaintiff's evidence as we have indicated, there was error in overruling plaintiff's motion for a new trial.
The judgment of the circuit court is therefore reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.
Addendum
While, as observed in McMullen et al. v. Daniel,
The application for rehearing is therefore overruled.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur. *547
