Gulsby v. Louisville & N.R. Co.

• Decision Date: 21 April 1910
• Citation: 167 Ala. 122,52 So. 392
• Parties: GULSBY v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

52 So. 392

167 Ala. 122

GULSBY v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

April 21, 1910

Appeal from Circuit Court, Monroe County; John T. Lackland, Judge.

Action by W. J. Gulsby against the Louisville & Nashville Railroad Company for maliciously, and without probable cause procuring the issue of a search warrant directed against the premises of plaintiff. From a judgment for defendant plaintiff appeals. Reversed and remanded.

The search warrant was procured upon the affidavit of one Hudson agent of the Louisville & Nashville at Drewry, Ala following the commission of the offense of robbery or larceny of goods while in the possession of the defendant railroad company. The facts sufficiently appear from the opinion of the court.

The following charges were refused: (6) "The court charges the jury that if you believe that the defendant, through its servant, wrongfully, vexatiously, and purposely made the affidavit complained of, and procured the issuance of the search warrant, and without probable cause for so doing, then you must find the defendant guilty, provided you find that Hudson was acting within the scope of his authority, or was authorized by the railroad to so act, or that the railroad company has since ratified his action." (7) "The court charges the jury that, if you find for the plaintiff in this case, you are authorized to award such damages over and above actual damages as will be a punishment to the defendant and serve as an example to him and others in the future." (9) "The court charges the jury that unless Hudson, the agent of the defendant, was at the time of making the affidavit complained of in possession of sufficient facts to justify a reasonable and cautious man to believe that the plaintiff had broken open a car and taken the goods alleged to have been stolen, then it makes no difference if he did suspect and believe that Gulsby was guilty, however honestly and earnestly he may have entertained such suspicion and belief; and you must find the defendant guilty if you also find that Hudson was acting within the general scope of his employment in making said affidavit and procuring the issuance of said warrant, or if you find that the defendant authorized the act, or has since ratified his said act."

The following charges were given at the request of the defendant: (2) "If the jury believe from the evidence that the agent, Hudson, was not acting within the scope of his employment or duties when he made the affidavit before W. C. Neville on November 28, 1908, the defendant cannot be held liable for such act." (10) "The court charges the jury that, if the jury is reasonably satisfied from the evidence that the agent, Hudson, was not acting within the scope of his employment or duties when he made the affidavit before W. C. Neville, on November 28, 1908, the defendant, the Louisville & Nashville Railroad Company, cannot be held liable under count 1 of the complaint." (26) "The court charges the jury that, before you can find for the plaintiff, you must believe that H. E. Hudson, the defendant's agent, is personally liable in damages to plaintiff for the alleged injury to his character." (29) "The court charges the jury that, if they believe from the evidence that plaintiff's character is bad, they may consider this fact in determining whether or not he was damaged by the issue of a search warrant complained of in this cause." (4) "The court charges the jury that, if the jury is reasonably satisfied from the evidence that Henry E. Hudson was acting as special deputy sheriff of Monroe county when he made said affidavit on November 28, 1908, then he was not acting within the scope of his employment, and you must find for the defendant under counts 1 and 4 of the complaint."

McCorvey & Hare, for appellant.

Barnett & Bugg, for appellee.

McCLELLAN J.

Section 5 of the Constitution of 1901 provides that "the people shall be secure in their persons, houses, papers and possessions from unreasonable seizure or searches," and that "no warrants shall issue to search any place or to seize any person or thing without probable cause, supported by oath or affirmation." In a leading and well-considered case in this country (Carey v. Sheets, 67 Ind. 375) it is said that the quoted declaration, in substance, is an affirmation of the common-law right of the citizen not to be searched or seized without probable cause. Where a search warrant is regularly issued upon oath or affirmation, but such oath or affirmation is the product of malice, and is not supported by probable cause therefor, and search of the place is made by the officer in accordance with the mandate of the search warrant, the party injured thereby may maintain an action on the case to redress the wrong so inflicted. Carey v. Sheets, 67 Ind. 375; Elsee v. Smith, 16 Eng. Com. Law Rep. 19; Beaty v. Perkins, 6 Wend. (N. Y.) 382; Whitson v. May, 71 Ind. 269; Olson v. Tvete, 46 Minn. 225, 48 N.W. 914; Harlan v. Jones, 16 Ind.App. 398, 45 N.E. 481; 25 Am. & Eng. Ency. Law, p. 151. As a matter of pleading, a count omitting the allegations of malice, though carrying the averment of want of probable cause, would be demurrable on account of the omission indicated, since the action on the case, for the violation of the right infracted, is, in nature, a malicious prosecution. Carey v. Sheets, supra. But proof of the averment of the malice infecting the oath or affirmation on which the search warrant issues may be inferred, by the jury, from want of probable cause, or from the facts and circumstances attending the procurement of the writ. Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308, 30 Am. St. Rep. 79.

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, supra; Jordan v. A. G. S. R. Co., 81 Ala. 220, 8 So. 191. Personal ill will, or desire for revenge, is not essential to the existence of malice as the law views it. Lunsford v. Dietrich, supra.

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 burden is of course on the plaintiff to show that the search warrant was maliciously and without probable cause therefor secured. But if the search warrant was executed by diligent search within its mandate, and the officer's return is "no property found," this, if shown, establishes prima facie that the property was not in plaintiff's possession, and that he did not steal or conceal it. Olson v. Tvete, 46 Minn. 225, 48 N.W. 914. If the facts are undisputed, probable cause vel non is a question of law. Ewing v. Sanford, 19 Ala. 605; McLeod v. McLeod, 75 Ala. 483. In this instance the search warrant appears to have been regularly issued; and the official return was executed by search, but none of the...