Deaderick v. Smith

• Decision Date: 13 January 1950
• Citation: 33 Tenn.App. 151,230 S.W.2d 406
• Parties: DEADERICK v. SMITH (two cases).
• Court: Tennessee Court of Appeals

Page 406

230 S.W.2d 406

33 Tenn.App. 151

DEADERICK v. SMITH (two cases).

Court of Appeals of Tennessee, Middle Section.

Jan. 13, 1950.

Certiorari Denied by Supreme Court June 7, 1950.

D. F. Blackmon, Nashville, Jack Keefe, Nashville, for plaintiff in error.

R. T. Cochran, Nashville, Martin & Cochran, Nashville, for defendants in error.

HOWELL, Judge.

These are damage suits filed by Robert Wayne Smith, referred to in the record as 'Toby', a minor, thirteen years of age by next friend and by Albert L. Smith, father of Robert Wayne Smith, against Dainey Deaderick and Robert Northern, a son-in-law of defendant Deaderick. The suits were dismissed as to the defendant Northern, leaving Dainey Deaderick the only defendant.

Upon the trial in the Circuit Court before the Court and a jury, there were judgments rendered in favor of Toby Smith for $2,500 as compensatory damages and $250 as punitive damages, in all $2,750 and in favor of Albert L. Smith for $2,500 as compensatory damages and $250 as punitive damages, in all $2,750, and the costs.

The defendant has properly perfected an appeal in error to this Court and has assigned errors.

The declaration in the case of the minor Toby Smith alleges that the plaintiff lives with his father and mother and three minor brothers and sisters at 736 Hamilton Avenue in Nashville and that on March 20, 1948, the defendant procured a city detective, C. D. Clark, to accompany him to plaintiff's home while plaintiff's parents were not at home and that detective Clark, at the instigation of defendant Deaderick and with his knowledge and consent and without any warrant or authority forced the plaintiff minor into Deaderick's automobile which was parked in front of his home and there with the knowledge and consent of defendant Deaderick did for sometime confine, detain, restrain and hold plaintiff against his will and in the presence of neighbors and his minor brothers and sisters and questioned, accused, threatened and intimidated plaintiff with words which plaintiff feared to disregard.

The declaration in the father's case alleges that plaintiff is a life-long resident of Nashville and lived with his family at 736 Hamilton Avenue and that on the morning of March 19, 1948, his thirteen year old son Toby brought to him a paper shopping bag containing a brief case and an overcoat which he, Toby, had found in an old rock quarry, used as a public dump, near their home; that the fact that Toby had found these articles at the dump was known to others in the neighborhood and on the afternoon of the same day, the son-in-law of the defendant came to plaintiff's home accompanied by a Mr. Hessey and advised plaintiff that the articles found by Toby had been stolen from defendant's automobile while it was being used by the son-in-law, Northern. Northern could not describe the articles and later defendant and Northern returned to plaintiff's home and defendant did identify the articles as belonging to him and plaintiff offered to turn them over to him; that the defendant Deaderick advised plaintiff that another party was interested in the articles and he would rather this party receive them. The declaration further alleged that on the afternoon of the next day, while plaintiff and his wife were away from home shopping at a nearby store, the defendant accompanied by a city detective C. D. Clark came to his home, while nobody was there except his minor children and were told that plaintiff and his wife were at a nearby store and would be home in a few minutes, whereupon defendant without saying anything further to the children, motioned to detective Clark and told him to come on in as he knew where the 'stuff' was and thereupon both defendant and Clark unlawfully and wilfully without warrant and with wanton and reckless disregard of the rights of plaintiff to the security of his home and to its use and enjoyment did wilfully enter and trespass upon the home of plaintiff, going inside thereof, removing the brief case from the top of a piece of furniture and the overcoat from a closet and thoroughly searched the house; that after leaving the house detective Clark walking behind him and guiding him instructed Toby to get into the back seat of defendant's automobile where he detained and imprisoned him for several minutes, while accusing, threatening and intimidating Toby and accused him of taking the article mentioned from defendant's automobile.

The declaration also alleged that this unlawful entry and search of plaintiff's home was viewed by residents of the neighborhood, and that plaintiff has suffered great humiliation, embarrassment and mental anguish.

The pleas were not guilty.

The assignments of error raise principally the questions that there is no evidence to sustain the verdicts, the verdicts are excessive and that the Court erred in charging the jury.

We have set out the allegations of the declaration rather fully and without detailing the testimony which we have carefully read and studied, we are satisfied that there was ample evidence which would justify the jury in finding the facts substantially as alleged in the declarations and in finding that the defendant did without any warrant unlawfully enter and search the plaintiff's home in the temporary absence of plaintiff and his wife and in the presence of the minor children and some neighbors and that he did procure the officer Clark to enter and search plaintiff's home and to wrongfully detain, hold and restrain the young son Toby against his will and wrongfully accuse him of stealing the lost articles and that defendant and detective Clark did unlawfully invade the sanctity of plaintiff's home.

It is said that many years ago William Pitt, a great Prime Minister of England, in a speech said: 'The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter,--but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.'

In the case of Townsell v. L. & N. Railroad Co., 4 Tenn.Civ.App. page 211, that Court said: 'But as a matter of fact this suit should not be regarded as a technical action for malicious prosecution either by statute or by common law rule. It should be looked upon as an action upon the facts for the redress of wrongs. It should be treated really more as an action of trespass, a suing for a wrongful entry upon and search of one's premises in an aggravated and offensive manner, with the implication that the party had committed the crime of larceny or of receiving stolen goods.'

In the Telephone and Telegraph Co. v. Stoneking, 1 Tenn.Civ.App. page 241, the Court said: 'It is too firmly settled to be controverted that every one who actively participates, aids or directs the committing of a trespass, is liable jointly with all the other participants. And this is true even as to a menial servant.'

In Wilkins v. Gilmore, 21 Tenn. 140, the Supreme Court said:

'As to the first proposition in this charge, that the action of trespass will lie for an injury done by another by the command, authority, or procurement of the party charged, there can be no doubt. Whoever procures or commands...