Harris v. Sims

• Decision Date: 21 October 1929
• Docket Number: 27961
• Citation: 124 So. 325,155 Miss. 207
• Court: Mississippi Supreme Court
• Parties: HARRIS v. SIMS et al

124 So. 325

155 Miss. 207

HARRIS v. SIMS et al

No. 27961

Supreme Court of Mississippi

October 21, 1929

Division A

Suggestion of Error Overruled Nov. 18, 1929.

APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.

Action by Titus Harris, by his father and next friend, etc., against A. M. Sims and others. From the judgment, plaintiff appeals and defendants prosecute cross-appeal. Affirmed.

See also, Sims v. Harris, 124 So. 328.

Affirmed.

S. H. Long and C. B. Hutchinson, both of Tupelo, for appellant.

The verdict is so inadequate for the injury shown as to show either prejudice and passion on the part of the jury or a total failure on their part to grasp the extent of the injury shown.

The rule is well settled in all the jurisdictions that the reviewing courts often will set aside a verdict which is so small or so large as to indicate passion or prejudice or to indicate that the jury failed to grasp the true character of the injury.

40 A.L.R. 294; 40 A.L.R. 310; 25 C. J. 568; Hog v. Plant, 47 A.L.R. 308; 40 L.R.A. 45.

Reputation prior to the arrest is competent to be proven on the question of whether the reputation was damaged or not.

Milton Dairy Co., 175 S.W. 105.

It is the general law of the land that when the plaintiff has proven his arrest without a warrant that the burden of proof is on the defendant to prove any justification of the arrest which he may allege in his plea.

Yazoo & Miss. R. R. Co. v. Levy & Son, 141 Miss. 200; McAleer v. Good, 116 A. S. R. 782, 10 R. C. L. 901, par. 52; 11 R. C. L. 801, par. 15; Smith v. Clark, 1912B, Ann. Cas., p. 1369; Rock v. Carney, 22 Law Reports 1182; Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; People v. McGrew, 77 Cal. 570, 20 P. 92; Mex. Cr. Co. v. Gehr, 66 Ill.App. 173; McCully v. Malcolm, 9 Hump. 187; Kirble v. State, 5 Tex.App. 60; Fox v. McCurnin, 218 N.W. 499 (Iowa); Nappi v. Wilson, 155 N.E. 151 (Ohio); Larson v. Erikson, 252 P. 922 (Wash.); Wax v. McGrath, 151 N.E. 317 (Mass.); Knight v. Baker, 244 P. 543 (Or.); Adams v. St. Louis & San Francisco R. R., 272 S.W. 984 (Mo.); Kiedel v. Baltimore & O. R. R., 126 A. 770 (Pa); Comstock v. Wells, 259 S.W. 500 (Mo.); Kastenbaum v. Director-General of R. R., 191 N.Y.S. 933; St. Louis, I. M. & S. R. R. Co. v. Waters, 152 S.W. 137 (Ark.); Sebring v. Harris, 128 P. 7 (Cal.); Adams v. Schwartz, 122 N.Y.S. 41, 137 A.D. 230; Pettis v. Same, 122 N.Y.S. 50, 137 A.D. 242; Sigmon v. Shell, 81 S.E. 739 (N. C. ); Tracy v. Coffey, 28 Ohio Cir. Ct. R. 479; Gold v. Campbell, 117 S.W. 463 (Texas); Slifer v. Yorath, 155 P. 113 (Mont.); Hobbs v. Ill. Cent. R. R. Co., 165 N.W. 912 (Iowa); Hendrix v. Manhatten Beach Development Co., 168 N.Y.S. 316; Levin v. Costello, 214 Ill.App. 505; Black v. Marsh, 67 N.E. 201 (Ind.); Mitchell v. State, 12 Ark. 50.

Bolton & Monaghan, of Tupelo, for appellees.

The only element of damage that plaintiff showed was some inconvenience in that the quarters were crowded and he didn't sleep any. No ill after effects were shown.

The rule is well settled that a party may not prove his own reputation in support of his own claim.

Pounders v. Day, 118 So. 298.

The court erred in refusing to permit the witness Francis to testify as to whether or not he arrested the plaintiff on his own judgment as to his being drunk or on what appellee told him and also whether or not he would have arrested him if appellee had not been present. Francis was the man who actually arrested this plaintiff, he was as much charged with the keeping of the peace as was appellee.

An instruction written in the disjunctive and clearly authorizing a verdict in either of two cases: First, if defendant was the procuring cause of plaintiff's arrest; Second, or that he later held the plaintiff in imprisonment under circumstances which under the other instructions would be unlawful was error.

The giving of an instruction for the plaintiff informing the jury if plaintiff has proven by a preponderance of the evidence that he was arrested without a warrant that then the burden of proof shifts to the defendant to prove any justification, deprived the defendants of due process of law and as applied by the court deprived the defendants of their property in violation of the Four-teenth Amendment to the Constitution of the United States.

Western & Atlantic R. R. Co. v. Henderson, 73 L.Ed. 519, 49 S.Ct. 519.

Argued orally by S. H. Long, for appellant, and by C. W. Bolton, for appellee.

OPINION

McGowen, J.

The state of Mississippi, for the use of Titus Harris, a minor, seventeen years of age, filed a declaration against A. M. Sims, a justice of the peace in Lee county, Mississippi, and the sureties on his official bond, for damages for the false imprisonment, therein alleged, of Titus Harris by Sims, the justice of the peace.

There was a verdict of the jury for seventy-five dollars and a judgment therefor entered by the circuit court, and the plaintiff filed his motion for a new trial on the ground of the inadequacy of the damages, which being overruled, an appeal is prosecuted to this court by Titus Harris, the plaintiff in the court below. A. M. Sims and the sureties on his bond prosecuted a cross-appeal.

On the night of October 5, 1927, the appellant, Titus Harris, in company with two other young men, relatives of the appellant, and bearing the name of Harris, was attending the fair which was in progress in Tupelo. Sims was a justice of the peace, and he and J. W. Francis, a deputy sheriff, were engaged in policing the grounds. About eleven o'clock of the night in question the officers say that these three men, with locked arms, were taking in the midway, staggering through the crowd, and being thus linked together, were pushing aside the people they met, and testified that the three young men were drunk and disorderly. Whereupon the officers arrested the three young men, Sims taking charge of one, and Francis arresting the other two, and took them to the jail, where they were locked in a cell with six or seven other men. The cell was small, and there were only four bunks on which to sleep. Some of the other parties in the jail were said to be very drunk and boisterous, while some were sick and vomiting.

About eight o'clock the next morning these three boys were released on bond. The officers had no warrants, and there was evidence tending to show that the justice of the peace directed the arrest of this man by Francis, or that he procured the appellant in this case to be arrested.

Titus Harris, the plaintiff, testified that he was sober, that he had not drunk anything, and there was much evidence tending to show that he was not drunk, or drinking. A short time before the arrest, he had been in company with young ladies, who testified that he was not drinking, as did other witnesses who observed him at the time, immediately before the arrest, and during the night.

The officers making the arrest, and other officers, were positive that this young man was drunk. The testimony of the plaintiff tended to show that several times that night relatives offered to make bond, but that the justice of the peace refused him bond, saying that he would be released to them when he was sober.

The pleadings interposed by the defendants set up the two-fold defense: First, that the officer sued did not arrest the plaintiff or cause him to be arrested; and, second, that the plaintiff was arrested at a time when he was drunk in a public place in the presence of the officer, or that a breach of the peace was threatened, or attempted, in his presence.

On the direct appeal the assignment of error only goes to the one point, that seventy-five dollars in damages is wholly inadequate to compensate for the humiliation, mental pain, and physical discomfort of confinement in a cell under the conditions stated. After the plaintiff had shown that he was arrested while standing, engaged in conversation with others, doing nothing but enjoying the gala occasion of a county fair, without being given opportunity to make bond, and, after the officer had testified that he was drunk in a public place, the plaintiff offered a number of witnesses to show that his general reputation for sobriety was good in the community in which he lived.

In a suit for damages based on false imprisonment, the question is one for a jury, whose finding is not to be disturbed, unless the court can now say that the verdict evinces passion or prejudice on the part of the jury. It may be said that the amount awarded by the jury, from the standpoint of the plaintiff's evidence, was small; it may further be said that the jury accepted the evidence offered by the plaintiff as true--that at the time of his arrest and incarceration he was sober, and not violating any law, or attempting to do so. On the other hand, in the light of all the facts and circumstances, the jury may have concluded that the officers simply made a mistake, in an honest effort to discharge their duty and enforce the law, and the jury may have thought that the amount of the verdict vindicated the good name and fame of the plaintiff, and that the good faith of the officers should mitigate the damages to be allowed.

Whatever may have influenced the jury, there are no extrinsic evidences of passion or prejudice, and we do not feel warranted in invading the province of the jury, which saw the witnesses, observed their demeanor on the witness stand, and were fellow citizens, along with the parties to this suit, of the county in which the case was tried.

On the cross-appeal, the counsel for cross-appellant assigns as error:

First, that the court erred in permitting the evidence of witnesses as to plaintiff's general reputation for sobriety. He being a boy seventeen years of age at the time of...