Hogg v. Plant
| Decision Date | 17 June 1926 |
| Citation | 133 S.E. 759 |
| Court | Virginia Supreme Court |
| Parties | HOGG . v. PLANT et al. |
Error to Circuit Court of City of Norfolk.
Action by one Hogg, a minor by, etc., against Marvin Plant and others. Judgment setting aside verdict for plaintiff, and he brings error. Affirmed.
A. A. Bangel, of Portsmouth, for plaintiff in error.
Herman A. Sacks, of Norfolk, for defendants in error.
This was an action for false imprisonment brought against the defendants for the conduct of a watchman whom they had employed to guard their storehouse at night. There were two trials of the case. On the first trial there was a verdict for the plaintiff for $2,500, which the trial court set aside. On the second trial there was a verdict and judgment for the defendants. The case is before us now on exception to the judgment of the trial court setting aside the first verdict. None of the proceedings on the second trial is before us. If any exception was taken to the proceeding or judgment in the second trial it does not appear from the record before us.
The grounds of the motion to set aside the first verdict were: (1) That the verdict was contrary to the law and the evidence; (2) that it was excessive; (3) that the size of the verdict clearly showed that punitive damages were allowed, and that no such damages could have been awarded against the defendants; (4) that the court erred in granting the instructions tendered by the plaintiff; and (5) that the court erred in amending instruction A offered by the defendants. The trial court sustained the motion and set aside the verdict, "giving as a reason therefor that the size of the verdict clearly indicated thatthe jury was Influenced by a passion or prejudice, " and stating that it "did not pass upon any other grounds urged by the defendants in support of their motion for a new trial."
The defendants had a junk yard in the city of Norfolk, and adjoining it on the same lot an army and navy store, which had been broken into 13 times in 11 months, and 3 or 4 times in the 18 days immediately preceding the present controversy. They employed Edward Stevenson as a watchman to guard their property at night, and, if possible, to break up these depredations.
The plaintiff is a young man, 20 years of age, and resides in the city of Portsmouth across the Elizabeth river from the city of Norfolk. On Sunday afternoon, January 18, 1925, he went to call on a lady friend, Miss Mary Owens, in the city of Norfolk. He remained there until about 9 o'clock, and left for home going down Front street on which is located the defendants' plant. There is serious conflict in the testimony as to whether he entered the plant. He says that he did not. At all events, immediately after he passed the plant, the watchman pursued him and overtook and arrested him, charging him with entering the plant, and at the point of a pistol brought him back to the plant of Johns Bros., Inc., which adjoins the plant of the defendants. When they got to the defendants' plant, the watchman said to the plaintiff, "That is where you tried to get in;" and the plaintiff replied that he did not, and the watchman said, "You are a God damn liar, " and repeated it three times. When they got to the Johns Bros.' plant the watchman called up police headquarters and the Plant residence. Several police detectives responded promptly, and while the watchman was giving the detectives his version of what had occurred, Marvin Plant, one of the defendants, and the junior member of the firm of Plant & Son, came in. The watchman was making his report to the detectives. Nothing was said about the watchman having cursed the plaintiff, and he denied on the witness stand that he had done so. Marvin' Plant did not speak a word to any one. All who were present testify that they could get nothing out of the plaintiff. Marvin Plant says, "The chap was crying and couldn't give him (detective) any suitable reply." The detective said, "Come go to the police station, " and took him to detective headquarters in an automobile. The detective testified that, in answer to questions, the plaintiff stated that he had been visiting Miss Owen, and that on his way home he had stepped into the plant to urinate. He was then taken to Miss Owen's home, and his account of his visit was fully verified by her mother, and they returned to the detective headquarters and the plaintiff was discharged. Neither the watchman nor Marvin Plant nor the police knew the plaintiff or had ever seen him before. j
A witness for the plaintiff testified that he knew that the plaintiff had been visiting that day at the Owen residence, and that he suggested to the watchman to go there and verify the statement, but that the watchman rebuffed him and asked him what he had to do with it. Several witnesses for the plaintiff also testified that they saw the plaintiff pass the defendant's plant and that he did not go in. On this question, the evidence was conflicting, but there is no conflict as to the part taken by the defendants in what was done.
There was some testimony about Miss Owen refusing to go with the plaintiff afterwards, but it is not claimed that he was engaged to her, nor is any special damage claimed in the declaration in consequence thereof. In the view we take of the case, it will be unnecessary to refer further to this testimony.
It is very plain that the relation of the defendants and the watchman was that of master and servant, and it is equally plain that the defendants cannot be held liable for punitive damages, unless the watchman did some act warranting punitive damages, and that such act was previously authorized or subsequently...
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...Defendant further argues that because punitive damages may not be awarded against a principal for the acts of an agent, Hogg v. Plant, 145 Va. 175, 133 S.E. 759 (1926), the court should have instructed the jury that punitive damages could be awarded only upon a specific finding that Dr. Bul......
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