Monroe v. Darr

• Decision Date: 22 January 1977
• Docket Number: No. 48088,48088
• Citation: 221 Kan. 281,559 P.2d 322
• Parties: James David MONROE, Appellant, v. Johnny DARR, Sheriff of Sedgwick County, Kansas, and Ohio Casualty Insurance Company of Hamilton, Ohio, Appellees.
• Court: Kansas Supreme Court

Page 322

559 P.2d 322

221 Kan. 281

James David MONROE, Appellant, v. Johnny DARR, Sheriff of Sedgwick County, Kansas, and Ohio Casualty Insurance Company of Hamilton, Ohio, Appellees.

No. 48088.

Supreme Court of Kansas.

Jan. 22, 1977.

Syllabus by the Court

1. Punitive damages may be recovered for an invasion of the right of privacy where the defendant has acted with malice.

2. One who has established a cause of action fro unreasonable invasion of his privacy is entitled to recover damages for (a) the harm to his interest in privacy resulting from the invasion; (b) his mental distress proved to have been suffered if it is of a kind which normally results from such an invasion; and (c) special damage of which the invasion is a legal cause. (Following Restatement, Second, Torts, § 652H.)

3. Although a plaintiff in a privacy action can recover without proof of special damages and is not required to show general damages in specific amounts, he is required to introduce some evidence to show that he suffered anxiety, embarrassment, or some other form of mental anguish in order to recover for that element of damages.

4. The right of the people to be secure in their homes is a basic right guaranteed by the Kansas Constitution in Section 15 of the Bill of Rights. Entry into a private home or apartment by police officers without a warrant constitutes an invasion of the right of privacy of the members of the family residing there and unless justified by legal privilege gives rise to a cause fo action for breach of privacy.

5. A sheriff and his surety may be held liable on the sheriff's bond under K.S.A. 19-805 for intentional or negligent acts of the sheriff's deputies where such acts did not involve malice or wantonness or willful misconduct.

David W. Kennedy, Wichita, argued the cause, and was on the brief for appellant.

H. E. Jones, of Hershberger, Patterson & Jones, Wichita, argued the cause, and Stephen J. Jones, Wichita, and H. W. Fanning, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, were with him on the brief for appellees.

PRAGER, Justice:

This is an action brought against a sheriff and his surety in which plaintiff seeks to recover damages for a violation of his right of privacy. The plaintiff-appellant is James David Monroe who will be referred to in this opinion as plaintiff or Monroe. The defendants-appellees are Johnny Darr, sheriff of Sedgwick county, and his surety, Ohio Casualty Insurance Company. This action arose as the result of a non-consensual entry into Monroe's appartment by sheriff's deputies in February of 1973.

The factual circumstances are not in dipute and are essentially as follows: At approximately 7:50 a. m. on February 8, 1973, an automobile driven by Maurice G. Hackworth was forced off the road by the driver of another vehicle. Hackworth was then assaulted by being hit in the back of the head with a revolver after the assailant discovered that Hackworth did not have any money. Hackworth called the sheriff's office and described his assailant as a white male, approximately 20 years of age, about 6 feet tall, and weighing about 200 pounds, with long brown hair and a long beard. Hackworth first described his assailant's vehicle as a 1960-61 light blue Dodge Lancer with a dented trunk lid and bearing no license tag. At 8:50 a. m. a 1960-61 Plymouth Valiant was observed parked at the Royal Regency apartments in Wichita. Sheriff's deputies arrived at the scene and immediately sought out the apartment manager. The apartment manager was advised of the attempted robbery, the description of the assailant, and the fact that a vehicle in the parking lot of the Royal Regency apartments seemed to match the description of the vehicle used in the attempted robbery. The manager stated that this sounded like the people that lived in the besement apartment downstairs on the right side. The apartment manager then arranged for the maintenance man of the complex to accompany the officers to the apartment. The officers knocked loudly at the apartment door. When no answer was received, the maintenance man at the request of the deputies opened the door with a pass key. As the deputies entered the apartment, sheriff's deputy Maxey carried a shotgun. The plaintiff Monroe was sleeping in his bed at the time and was awakened by the deputy sheriff who was pointing the shotgun at Monroe. The deputy ordered Monroe to remove his hand from underneath the pillow upon which he had been sleeping. According to Monroe the deputy then advised him that he was looking for a black man with a beard. It was undisputed that the officer entered the Monroe apartment without the permission of Monroe. The officer immediately decided that Monroe was not involved in the attempted robbery of Hackworth an hour before. The officers left the Monore apartment about two minutes after they entered the same. The officers then investigated several other apartments in the building but left when the victim of the attempted robbery arrived and advised them that the vehicle in the parking lot had the dent in the trunk lid on the wrong side and was not his assailant's vehicle.

On February 15, 1973, a week after the occurrence, Monroe filed an action against sheriff Darr and his surety, Ohio Casualty Insurance Company, to recover damages on the sheriff's bond for invasion of his right of privacy. The defendants filed a motion to dismiss the action for failure of the petition to state a claim upon which relief could be granted. The district court sustained the motion and Monroe appealed to this court. We reversed and remanded the case with directions to proceed with trial. (Monroe v. Darr, 214 Kan. 426, 520 P.2d 1197.) In the first appeal we held that a sheriff and his sureties are responsible for acts of the sheriff's deputies performed or committed in discharging their official duties under the provisions of K.S.A. 19-805. We further held that the plaintiff's petition sufficiently stated a claim against the sheriff and his surety for damages for invasion of Monroe's privacy and the assault committed by the sheriff's deputies.

Following reversal of the case a pretrial conference was held by the district judge on April 25, 1975. On April 28, 1975, the action came on for trial before a jury. Prior to the commencement of the trial, counsel for the defendants moved to strike the plaintiff's claim for punitive damages for the reason the there was no evidence of willful or wanton misconduct on the part of the sheriff's deputies so as to justify punitive damages. The court gave the plaintiff no opportunity to present evidence on his claim of punitive damages and on the basis of the pleadings and the pretrial order struck the plaintiff's claim for punitive damages. The case then proceeded to trial. After the plaintiff had presented his evidence and rested, the district court sustained the defendants' motion for a directed verdict and to dismiss the action for the reason that the plaintiff's evidence failed to show that he had sustained any damages and there was an insufficient evidenctiary basis for the jury to award plaintiff a judgment for money. The plaintiff Monroe's case was dismissed and he has appealed to this court.

Monroe's first point on the appeal is that the trial court erred in striking his claim for punitive damages before he was afforded an opportunity to introduce evidence on that issue. The record discloses that in the prayer of his petition plaintiff sought to recover $5,000 exemplary damages in addition to $5,000 actual damages. The plaintiff continued to assert his claim for punitive damages at the pretrial conference. The pretrial order specifically states that a mixed question of law fact to be determined is whether or not the plaintiff is ontitled to recover punitive damages. Plaintiff maintains that it was prejudicial error for the trial court to strike his claim for puntive damages before trial without affording plaintiff an opportunity to prove his claim.

The general rule is that punitive damages may be recovered for an invasion of the right of privacy where the defendant has acted with malice. (62 Am.Jur.2d, Privacy, § 47; Santiesteban v. Goodyear Tire & Rubber C., (5th Cir., Fla., 1962) 306 F.2d 9; Munden v. Harris, 153 MoApp. 652, 134 S.W. 1076; Hinish v. Meier & F. Co., 166 Or. 482, 113 P.2d 438; Summit Loans, Inc. v. Pecola, 265 Md. 43, 288 A.2d 114.) A Plaintiff seeking to recover punitive damages has the burden of proving malice on the part of the defendant. In the present case the trial court prematurely entered its deputies who were involved in the affair. damages before the plaintiff had an opportunity to introduce evidence on that issue. However, at the trial the plaintiff, in order to show the factual circumstances surrounding the invasion of his apartment by the sheriff's deputies, offered into evidence statements taken from various sheriff's deputies who were involved in the affir. The plaintiff accepted the statements of these officers as true and rested his case upon them. In these statements the sheriff's deputies stated unequivocally that they entered the Monroe apartment because they were in search of an unknown person who might have been involved in the attempted robbery of Maurice Hackworth approximately one hour before. Although the actions of the deputy sheriffs could well be described as overly zealous in invading Monroe's apartment without first obtaining a search warrant, there is nothing contained in the evidence relied upon by Monroe which shows that the sheriff's deputies acted with malice or were chargeable with willful or wanton misconduct. We have held that exemplary or puntive damages are not recoverable from a sheriff unless fraud, malice, oppression or improper motives are shown. (Winstead, Sheriff, v. Hulme, 32 Kan. 568, 4 P. 994; Dow, Assignee, v. Julien, 32 Kan. 576, 4 P. 1000.) We have concluded that, although the district court acted prematurely in striking plain...