Mcclannan v. Chaplain

• Decision Date: 15 March 1923
• Citation: 116 S.E. 495
• Court: Virginia Supreme Court
• Parties: McCLANNAN . v. CHAPLAIN et al.

116 S.E. 495

McCLANNAN .

v.CHAPLAIN et al.

Supreme Court of Appeals of Virginia.

March 15, 1923.

Error to Circuit Court, Princess Anne County.

Action in trespass on the case of J. H. McClannan against Oscar Chaplain and others. Judgment for defendants, and plaintiff' brings error. Affirmed.

This is an action of trespass on the case instituted by the plaintiff in error, McClannan, the tenant of a farm in Princess Anne county (who will be hereinafter referred to as plaintiff), against the defendants in error (who were special police officers appointed by the court under section 4797 of the Code, and who will be hereinafter referred to as the defendants, or as the defendant officers), seeking to recover compensatory and punitive damages of the defendants for injury to the health of the wife of the plaintiff, to the plaintiff's credit and character, and to the land itself, caused, as alleged, by the unlawful entry of the defendants upon said farm searching for an illegal still, without a search warrant, and without the consent of the plaintiff, and by their wanton and malicious conduct while there, consisting, as alleged, of the disorderly conduct of making a great noise and disturbance on said farm by firing off guns and revolvers and doing other acts by which the plaintiff and his family were at the time greatly annoyed and disturbed, and the plaintiff's wife was frightened and made sick.

There was a trial by jury which resulted in a verdict for the defendants, upon which the judgment under review was accordingly entered, and the plaintiff assigns error.

Of the evidence it is, in general, sufficient to say that the jury were fully warranted in finding in accordance therewith ' that no substantial damage was occasionedthe plaintiff by the conduct of the defendant

officers, and the case turns upon whether the plaintiff was entitled to recover punitive or at least nominal damages.

Upon the latter subject the material i;acts shown by the evidence without conflict are as follows:

About a year before the trial of the instant case officers found and destroyed a still on the said farm in the woods on the back part of it, for possession or operation of which, however, there was no prosecution of the plaintiff.

A short time prior to the entry of the defendant officers upon the farm occupied by the plaintiff, the officers received information that there was an illegal still in operation in the thicket or woods or swamp back of the plaintiff's residence. This thicket or the woods and swamp extended back on some adjoining land also, under different ownership from that of the farm occupied by the plaintiff. On a certain day in March, in the daytime, the defendant officers, without knowing just where the boundary lines of the lands were, and, indeed, not thinking about the ownership of the land at all, or that there would be any objection to their going on the land for the purpose they had in view, entered and searched the thicket, woods, and swamp aforesaid, in the effort to find the illegal still which they had been informed as aforesaid was there. They found four or five places where stills had been, one bearing evidence of having been as recently removed as within a week, the others seeming to have been removed a month or two, or more, it not appearing, however, that any of such stills had been on the farm in question except the one which had been found there, as aforesaid, about a year before the trial. The defendant officers became separated in the swamp, and one of them came out of the woods and sat down on the railroad track, off of the land of said farm, and, after waiting there for about an hour for his companions, fired a pistol shot, which was the signal agreed upon for them to get together. This shot was answered by a pistol shot which was fired by another of the defendant officers down in the woods, about 50 or 75 yards from the edge of the woods nearest to the dwelling house of the plaintiff, and about 250 or 275 yards from such house. These were the only shots fired by the defendant officers, and the only conduct on their part that could be relied on by the plaintiff as being disorderly. The defendant who fired the last-mentioned shot thereupon came out to the edge of the woods, which was about 200 yards from the said dwelling house, and walked along the edge of the field of the said farm, which adjoined the woods, until he got off the farm, and thence joined his companions, he being the only one of the defendants who came within sight of the dwelling house, so far as appears in evidence, and he at no time went within the curtilage or nearer than 200 yards of the house.

On the subject of search warrants, there was in force in this state at the time the alleged cause of action in this case arose, in addition to the common law, the following constitutional and statutory provisions:

Section 10 of the Virginia Constitution, which is as follows:

"Sec. 10. General Warrants of Search or Seizure Prohibited. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted."

Acts 1920, pp. 516, 517, which, so far as material, is as follows:

"Sec. 4. It shall be unlawful for any officer of the law * * * to search any house, place, vehicle, baggage or thing, 'except by virtue of and under a warrant issued by the proper officer. Any officer * * * violating the provisions of this section shall be liable to any person aggrieved thereby in both compensatory and punitive damages. * * *

"Provided, however, any officer empowered to enforce the game laws and the laws with reference to intoxicating liquors may without a search warrant enter for the purposes of police inspection any freight yard or room, passenger-depot, baggageroom or warehouse, storage room or warehouse, train, baggage oar, passenger car, express car, Pullman car, freight car, boat or other vehicle of any common carrier, boat, automobile or other vehicle; but nothing in this proviso contained shall be construed to permit a search of any occupied berth or compartment on any passenger car or boat or of any baggage, bag, trunk, box or other closed container without a search warrant."

The action of the trial court with respect to the instructions was as follows:

After the evidence had been introduced, and before the argument of the case, the plaintiff moved the court to instruct the jury as follows:

"Plaintiff's Instruction No. 1.

"The court instructs the jury that every unauthorized entry on land of another is a trespass from which it will be presumed that an injury resulted, even if it was no more than the trampling of the herbage and if they believe from the evidence in this case that the defendants entered on land in the possession of the plaintiff without any authority, they should find for the plaintiff.

"Plaintiff's Instruction No. 2.

"The court further instructs the jury that, if they believe from the evidence that the defendants, without authority—that is, without any warrant directing them to do so—entered upon the lands of the plaintiff searching for ardent spirits or illegal stills, and while there fired off guns and revolvers, thereby disturbing and frightening members of the plaintiff's family, they should find for the plaintiff, and in estimating his damages they may take into consideration the injury to said property, injury to the feelings of the plaintiff, and anyinjury to bis reputation that may have resulted therefrom; and if the jury further believe that the defendants in doing said acts acted willfully and wantonly, or in reckless disregard of the rights of the plaintiff, they may, in addition to the actual, damages awarded said plaintiff, award punitive damages against the defendant; that is, such damages as will make an example for the public good and teach other persons not to offend in a like manner."

The court granted plaintiff's instruction No. 1, hereinabove set forth, as offered, but refused to grant instruction No. 2 for the plaintiff as hereinabove set forth, as same was offered, and amended same so as to read as follows, and as amended gave same to the jury:

"Plaintiff's Instruction No. 2.

"The court instructs the jury that, if they believe from the evidence that the defendants entered upon the lands of the plaintiff searching for ardent spirits or illegal stills, and while there acted in a disorderly manner, thereby disturbing and frightening members of the plaintiff's family, they should find for the plaintiff, and in estimating his damages they may take into consideration the injury to said property, injury to the feelings of the plaintiff, and any injury to his reputation that may have resulted therefrom; and if the jury further believe that the defendants in doing said acts acted willfully and wantonly, or in reckless disregard of the rights of the plaintiff, they may, in addition to the actual damages awarded said plaintiff, award punitive damages against the defendants; that is, such damages as will make an example for the public good and teach other persons not to offend in a like manner."

And the defendants at the same time moved the court to instruct the jury as follows:

"Defendant's Instruction.

"The court instructs the jury that, if they believe from the evidence that the defendants were duly qualified officers of the law, and that they believed that the law was being violated in the woods of the plaintiff, they were justified in going on the land of the plaintiff, and the jury must find for the defendants unless they further believe from the evidence that the defendants by grossly wanton and negligent acts caused the plaintiff damage."

This instruction was accordingly given over the objection of the plaintiff.

N. T. Green, of Norfolk, for plaintiff in error.

E. J. Smith,...