Meadows v. Corinne Coal & Land Co.
| Decision Date | 13 November 1934 |
| Docket Number | 7892. |
| Citation | 177 S.E. 281,115 W.Va. 522 |
| Parties | MEADOWS v. CORINNE COAL & LAND CO. |
| Court | West Virginia Supreme Court |
Submitted October 30, 1934.
Rehearing Denied Dec. 21, 1934.
Syllabus by the Court.
1. "A corporation is liable for a malicious prosecution by its agent, acting within the scope of his employment and in furtherance of his company's business, notwithstanding the company may not have expressly authorized or ratified his act." Fetty v. Huntington Loan Co., 70 W.Va 688, 74 S.E. 956.
2. In an action for indeterminate damages, the verdict of the jury fixing the amount of recovery will not ordinarily be disturbed by the court on the ground of either excessiveness or insufficiency, unless there be indication of passion partiality, corruption or prejudice on the part of the jury.
Error to Circuit Court, Wyoming County.
Action by Everett Meadows against the Corinne Coal & Land Company. To review a judgment setting aside a verdict for plaintiff plaintiff brings error.
Judgment reversed, verdict for plaintiff reinstated, and judgment rendered thereon.
Wm. M Holroyd, of Mullens, Bailey & Shannon, of Pineville, for plaintiff in error.
W. H. Rardin, of Beckley, for defendant in error.
This writ of error presents for review the action of the trial court in setting aside a verdict for $2,000.00 in favor of the plaintiff and against the defendant for malicious prosecution.
The defendant owns a number of dwelling houses in the town of Corinne. The plaintiff leased one of them and occupied it with his family. On the 1st of February, 1933, the plaintiff being in default of two months rent ($6.00 per month), Lee Blackwell, agent in charge of defendant's said properties, caused a distress warrant to be issued against the plaintiff by a justice of the peace of Wyoming County. Blackwell and a constable forthwith went to the plaintiff's home to execute the warrant, but ascertaining from a woman who was looking after the plaintiff's children that he was at work in a coal mine and that his wife was at the instant absent from the home, levy was not then made under the warrant.
Later in the day, after the plaintiff's wife had returned to the home, the constable undertook to execute the warrant by locking up the house with padlocks which had been furnished him by Blackwell. This made it necessary for plaintiff's wife and children to seek shelter at a neighbor's home.
When the plaintiff returned from work that evening, he found his home locked and his family gone. He then went to the county seat and sought the constable who, on advice of counsel, gave the plaintiff keys to the padlocks on the house. The plaintiff then returned to his home and entered. His wife and children came back. As the plaintiff made preparations for starting a fire for heating and cooking purposes, Blackwell, accompanied by his young son, looked on from the seclusion of an adjoining house. At that time Blackwell did not know that the constable had returned the keys to the plaintiff; so he conceived the idea that the plaintiff had unlawfully entered the house. Immediately, he went before the justice who had issued the distress warrant and made complaint upon which a warrant for breaking and entering the property was issued. State policemen, accompanied by Blackwell, forthwith executed the warrant by arresting the plaintiff and placing him in jail where he remained until he was taken the following morning before the justice who dismissed the warrant on motion of Blackwell.
Directly following the dismissal of the felony warrant Blackwell procured the issuance of a misdemeanor warrant against the plaintiff charging him with the unlawful destruction of certain property of the defendant. This warrant was served on the plaintiff in the justice's office. Upon a prompt trial before a jury summoned by the justice, the plaintiff was acquitted. This latter warrant grew out of the fact that Blackwell, while watching from seclusion the movements of the plaintiff the evening of February 1st, observed him remove two small boards from a partition wall in the house for the purpose of making kindling with which to start a coal fire.
The plaintiff, by his declaration, impleads both arrests, but the arrest under the felony warrant, of course, furnishes the gravamen of his complaint. The trial court seems so to have treated it. We shall do likewise.
In the order setting aside the verdict, the trial court recited, "the court having maturely considered the motion of the defendant to set aside the verdict of the jury heretofore returned herein, is of opinion to and doth sustain said motion on the grounds there was probable cause for the issuance of the warrant complained of in plaintiff's declaration."
Standing at the beginning of the consideration of the legal aspects of this case is the fact of the unlawful exclusion of the plaintiff and his family from their home the evening of February 1, 1933. Under a distress warrant for rent (Code 1931, 37-6-13) distraint may be made on the lessee's goods found on the leased premises, or which may have been removed therefrom not more than thirty days. The goods may be taken into possession by the officer executing the writ, but ordinarily he is not authorized to take charge of the whole of the leased premises and exclude the tenant therefrom. 36 Corpus Juris, p. 575; 2 Tiffany, Landlord and Tenant, p. 2059.
Though the plaintiff was in arrears of rent February 1, 1933, he was nevertheless in lawful possession of the house which he occupied as his home. Having been unlawfully excluded therefrom, there was no possible theory upon which there could be based the idea that his re-entry that evening involved a breaking and entering within the meaning of the criminal statute on the subject. His right of occupancy at that time was superior to the rights of all other persons, including the owner. Whether he did or did not obtain the keys from the constable is not important. He had a right to re-enter in such peaceful manner as he saw fit, so long as he did not unnecessarily injure the property. It follows that Blackwell's ignorance of the delivery of the keys by...
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