Banfill v. Byrd

Decision Date10 April 1920
Docket Number21036
Citation122 Miss. 288,84 So. 227
CourtMississippi Supreme Court
PartiesBANFILL v. BYRD et al

March 1920

1. SEARCHES AND SEIZURES. Officer searching private premises on a void search warrant cannot defend on theory of consent unless freely given.

An officer undertaking to search the premises of a private person on a void search warrant cannot defend a damage suit on the theory that the defendant consented to the search unless it appears that the consent was freely given, or that the party had full knowledge of her rights, and that such consent was not given because of the warrant or the official character of the officer. A citizen is not required to resist an officer to maintain a suit in such cases.

2. SEARCHES AND SEIZURES. General bad character is admissible in mitigation of damages in a suit for unlawful search and seizure.

Evidence of general bad character is admissible in mitigation of damages in a suit for unlawful searches and seizures; but special acts or specific acts are not admissible, especially where the acts are those of guests in a hotel and not brought to the knowledge of the hotel keeper.

3. INTOXICATING LIQUORS. In action for unlawful search, evidence of conduct of guest not admissible against hotel keeper where not shown to have come to her knowledge.

Specific acts of immoral conduct by guests or roomers in a hotel are not admissible in evidence against the hotel keeper in a suit unless she learns of them and acquiesces therein after such knowledge. She may presume her guests are moral, and does not have to spy on them to see that they do not do wrong acts.

4. NEW TRIAL. Trial judge cannot set aside a verdict contrary to peremptory instruction and render judgment for nominal damages.

A trial judge does not have power to set aside a verdict for a defendant and render judgment for nominal damages where the verdict returned is contrary to a peremptory instruction.

5 TRIAL. Jury refusing to find a verdict as directed may be discharged.

Where a jury contumaciously refuses to find a verdict for plaintiff when directed to do so by the court, counsel for plaintiff is under no duty to move the court to compel compliance by the jury; but the jury may be discharged.

Holden and Stevens, JJ., dissenting.


APPEAL from Circuit Court of Harrison County, HON. CHARLES J. RUSHING, Judge.

Action by Mrs. Margaret Banfill against Calvin W. Byrd and others. Demurrers to declaration overruled and verdict for defendants, motion for a new trial overruled, and defendant's motion to correct the judgment so as to find for plaintiff in a nominal sum granted, and plaintiff appeals. Reversed and remanded.

Case reversed and remanded.

E. J. Bowers and W. H. Maybin, for appellant.

It is contended by appellant that the search of her premises, by Byrd, Murphy and a detachment of sailors, under so called search warrant, was as illegal and oppressive, as if a search had been made under a writ of replevin, or without any process of any kind. Affidavit for a search warrant was made before W. F. Goodwin, styled clerk of the police court in fact, the city jailor, and the search warrant issued by W. F. Goodwin, "clerk of the police court."

The only officer in the state of Mississippi authorized by law to issue a search warrant is a justice of the peace, Code, 1906, sec. 1541, and search warrants can be issued in cases of stolen property and for intoxicating liquors, had and kept in violation of law.

Sec. 23 of the constitution provides that: "The people shall be secure in their persons, houses and possessions from unreasonable seizures or search and no warrant shall be issued without probable cause, supported by oath or affirmation, especially designating the place to be searched and the persons or things to be seized." It is very clear from this that the search, for the property of appellant was an outrage upon and violation of her rights, for which she was entitled to substantial damages.

As to the objections to the testimony introduced, we submit that they were all well taken and should have been sustained by the court, especially under our statute with reference to the plea of general issue, Code, sec. 744. "This statute narrows the scope and effect of the general issue. Every defense not merely consisting of a denial of the allegations of the declaration must be specially pleaded, or notice thereof given under the general issue." Tittle v. Bonner, 53 Miss. 578.

In this cause defendant was permitted, over the objections of plaintiff, to offer all sorts of proof, not only of the general reputation of the house as to the sale of liquors and immorality, but as to specific incidents, and that, too, when it was conceded that the appellant had absolutely no knowledge or notice of these matters. In addition to this, the appellee was permitted to answer this question, "Did you believe you had a right to go in under that writ?" Testimony of C. W. Byrd. We submit, if the court please, that this was a manifest error because of the fact that every man is presumed to know the law and Byrd was presumed to know that the writ was void. In addition to all this, hearsay testimony was introduced.

It will be contended by the appellee that all this testimony was introduced in mitigation of damages, but we submit if the court please, that that doesn't help the matter at all, especially in view of the fact that the court declined to give appellant an instruction to the effect that they constituted no defense to the suit.

The jury evidently thought that it constituted a defense to the suit because they returned a verdict for the defendant and we respectfully submit that the refusal to give that charge was manifest and grave error, which gravely prejudiced the acts of appellant.

We also insist that the act of the court below in overruling the motion of appellant for a new trial was erroneous because of the fact that it was rendered against the peremptory instruction of the court to the contrary. The action of the court in amending the motion after the jury had been dismissed is also assignment of error, because the court had no right to change the verdict of the jury from a verdict for the defendant to a judgment for one dollar in favor of the plaintiff.

The record teems with errors, for all of which we respectfully submit the cause should be reversed and remitted.

McDonald & Marshall and John S. Heiss, for appellees.

We submit that the judgment appealed from should be here affirmed for the further reason that the learned court below should have granted the peremptory instructions requested by both appellees.

Further we think it is elementary that appellant's consent to the search under the proof in this case bars any action for damages upon her part. Volenti non fit injuria. She is presumed to know the law as well as is the appellee, Byrd. And her claim is simply that both of them thought the warrant was valid, and Byrd was mistaken. The peremptory instructions should have been given.

We submit that the judgment should be affirmed for the further reason that the appellant suffered no actual damages, either of a physical nature to her and her property or by way of humiliation, mental anxiety or distress of mind. The jury being properly charged to consider all of these elements of possible damage, held that she was not damaged. This precludes the question; the jury's verdict being manifestly correct upon the proof. Appellant has already a judgment for nominal damages.

No error, we respectfully submit, may be predicated upon the trial court's admission of testimony bearing upon the hotel's reputation. The demurrer of the appellee Maryland Casualty Company vainly endeavored to have appellant specify the elements of her alleged actual damage, alone recoverable against a surety. Then, on direct examination by her own counsel, the appellant herself injected into the case in chief that element of her claim under her declaration alone. Rebuttal proof upon the part of appellees was perfectly competent under the general issue. As to proof of specific acts of whiskey sales and lewdness in appellant's Hotel. The proof was forced out by appellant herself in her attacks upon the authenticity of appellee's testimony upon the reputation of her hotel. The proof was competent, too, we submit, as showing the justification of the hotel's reputation as having a basis of fact, and the real character of the hotel as a resort of vice, explaining the entire situation, and giving information to the jury, relevant, and necessary to an intelligent consideration of the cause. Any technical error in this was rendered harmless by the peremptory instruction granted for the appellant on the question of liability.

There could be no error in the trial court's action in overruling appellant's motion for a new trial, and entering judgment for nominal damages in favor of appellant. Appellant is clearly estopped from asserting this point by the actions of her counsel when the jury's verdict was returned, but beyond this, the jury's verdict was not a contempt, but a mere return that the jury could find no damages at all sustained by appellant. The fixing of nominal damages was not necessarily a jury function, it being merely technical and not depending upon testimony; and the sound and wise principle obtaining that a new trial will never be awarded to permit the recovery of nominal damages, the court very properly entered a judgment for nominal damages in the amount of one dollar in favor of appellant. In this, we submit, there could be no error. 17 Corpus. Juris. 725 (Damages): "Where plaintiff establishes a wrong and actual loss therefrom, he is entitled to nominal damages at least, although the actual...

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    ...35 S.D. 644, 153 N.W. 888; Simpson v. McCaffrey, 13 Ohio 508. The bad reputation of the plaintiff is likewise admissible. Banfill v. Byrd, 122 Miss. 288, 84 So. 227. If the evidence seized was actually used at a trial, that fact has been held a complete justification of the search, and a de......
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