Cartwright v. Canode

• Decision Date: 29 April 1911
• Parties: CARTWRIGHT et al. v. CANODE.
• Court: Texas Court of Appeals

138 S.W. 792

CARTWRIGHT et al. v. CANODE.

Court of Civil Appeals of Texas. Ft. Worth.

April 29, 1911.

Rehearing Denied May 27, 1911.

Appeal from District Court, Potter County; J. N. Browning, Judge.

Action by H. P. Canode against J. W. Cartwright and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Madden, Trulove & Kimbrough and F. M. Ryburn, for appellants. Reeder & Graham, for appellee.

CONNER, C. J.

Appellee, H. P. Canode, instituted this suit in the district court of Potter county against appellants J. W. Cartwright, S. P. Vinyard, W. A. Askew, R. H. McAlpine, W. D. Twitchell, Howard Trigg, W. H. Caviness, and W. H. Lewis, to recover damages for the alleged wrongful acts of appellants in breaking into a private storeroom in appellee's hotel, known as the Amarillo Hotel, on September 10, 1908, and taking therefrom wines, whiskies, beer, etc., and transporting the same through the streets of Amarillo for a distance of about three blocks, thus publishing appellee's hotel as a blind tiger and causing his guests to leave, and to otherwise injure his business. Appellee itemized his damages as follows: Value of stock of liquors seized and carried away, $1,500; loss of patronage occasioned by the disturbance at the hotel at the time of the raid, $500; injury to his business caused by the notoriety given the occurrence in carrying away the goods saved, $25,000; exemplary damages, $25,000.

Appellants pleaded the general denial, and specially denied that there was any concerted action or agreement between them to do the acts complained of by appellee, and that, if any act was done by them as alleged, it was so done at the request and under the direction of known officers of the law, viz., E. Putnam and O. J. Rountree, special officers known as "Texas Rangers," who were acting under and by virtue of a "search and seizure writ, duly issued and legal upon its face." A return of the goods seized was also alleged.

A trial was had before a jury, and a verdict returned in appellee's favor against all of the defendants for the sum of $1,600 as actual damages, and judgment was rendered in accordance therewith.

At the time of the occurrences under review, the city of Amarillo was operating under a published local option law, and it is undisputed that the Rangers named in the special plea of appellants in due form sued out a warrant on its face authorizing a search of appellee's premises and a seizure of intoxicating liquors, as provided by section 2 of the act approved April 5, 1907 (see General Laws 1907, p. 157). It is also undisputed that, with this warrant in hand and acting by virtue thereof, said Rangers forcibly broke open a storeroom in appellee's hotel and seized one or more drayloads of wines, whisky, beer, and perhaps other intoxicating liquors, found therein. Appellee did not sue either of the Rangers so acting, but specially alleged that the defendants advised and agreed to the issuance of the warrant and to the seizure made. The proof, however, affords little or no warrant for this allegation. On the contrary, we think the record only supports the conclusion that after the forcible entrance and seizure stated appellants, without malice and in good faith and at the request of said Rangers, assisted in removing the intoxicating liquors mentioned into drays, and thereafter accompanied the conveyances to a place where they were temporarily deposited. It is also undisputed that the liquors were later returned without injury, and the court peremptorily instructed the jury not to find damages because of a retention of the property.

Appellants stress the point that under the circumstances above stated they are not, in any event, liable for more than nominal damages; the contention being that it was their duty as good citizens to obey the officers of the law in rendering assistance when requested. Numerous authorities might be cited to the effect that peace officers, or persons called by them to aid in the execution of process, will be protected by such process, when not invalid on its face and when issued by a magistrate having jurisdiction, however irregular or even invalid the antecedent proceedings may be, and in such cases one called upon to aid the officer may do so freely, and is not required to examine the writ in order to judge of its validity. For to so require or to accord such right would often defeat the object of the law in giving an officer the power to call others to his aid. See Reed v. Rice, 2 J. J. Marsh. (Ky.) 44, 19 Am. Dec. 122; Tryon v. Pingree, 112 Mich. 338, 70 N. W. 905, 37 L. R. A. 222, 67 Am. St. Rep. 398; Firestone v. Rice, 71 Mich. 377, 38 N. W. 885, 15 Am. St. Rep. 266. But, while this is generally true, we must sustain the instruction of the court to the effect that the affidavit and warrant for the search and seizure was wholly void and unauthorized. The section of the act before cited upon which these proceedings were based has, since the seizure under consideration, been expressly declared to be unconstitutional. See Dupree v. State, 102 Tex. 455, 119 S. W. 301. And, says Mr. Cooley in his work...