State for Use and Benefit of Morris v. Mills

• Decision Date: 19 March 1974
• Docket Number: No. 13286,13286
• Citation: 157 W.Va. 674,203 S.E.2d 362
• Parties: STATE of West Virginia, which sues for the Use and Benefit of Bobby Lee MORRIS, et al. v. Okey A. MILLS and the Aetna Casualty and Surety Co., a corp.
• Court: West Virginia Supreme Court

Page 362

203 S.E.2d 362

157 W.Va. 674

STATE of West Virginia, which sues for the Use and Benefit of Bobby Lee MORRIS, et al.

v.

Okey A. MILLS and the Aetna Casualty and Surety Co., a corp.

No. 13286.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 5, 1974.

Decided March 19, 1974.

Syllabus by the Court

1. 'The general rule is that no party may assign as error the giving of or the refusal to give an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly the matter to which he objects and the grounds of his objections and ordinarily this Court, in the exercise of its appellate jurisdiction, will consider only objections which have been made in this manner.' Point 2, syllabus, Lambert v. Great Atlantic & Pacific Tea Co., W.Va., 184 S.E.2d 118, decided by this Court June 29, 1971.

2. The sheriff of any county is authorized and empowered to arrest and hold in custody, without a warrant, until complaint may be made before a justice and a warrant issued, any person who in the presence of such sheriff appears in a public place in an intoxicated condition.

3. Where the evidence is conflicting as to whether or not a misdemeanor was committed in the presence of a police officer, the question of whether the officer was justified in making an arrest, without a warrant, is for jury determination.

4. 'It is error to give inconsistent instructions, even though one of them embodies a correct statement of law, inasmuch as the jurors in such circumstances are left to determine which statement of law is correct and inasmuch as it is impossible for the court later to determine upon what legal principle the verdict is based.' Point 1, syllabus, State Road Commission v. Darrah, 151 W.Va. 509, 153 S.E.2d 408.

Lynch, Mann & Knapp, Norman Knapp, Jack A. Mann, Beckley, for appellants.

James M. Henderson, II, Anthony J. Sparacino, Beckley, for appellees.

BERRY, Justice:

This is an appeal by the defendant below, Okey A. Mills, hereinafter referred to as defendant, and Aetna Casualty and Surety Company, surety on his official bond, from a final judgment of the Circuit Court of Raleigh County entered March 7, 1972, wherein the court denied the defendant's motion to set aside the judgment in favor of the plaintiff below, Bobby Lee Morris, hereinafter referred to as plaintiff, and to grant the defendant a new trial. The jury returned a verdict in favor of the plaintiff in the amount of $300 compensatory damages and $1,000 punitive damages in plaintiff's action for false arrest and false imprisonment. This Court granted the appeal on December 11, 1972, and the case was submitted for decision on February 5, 1974 on the arguments and briefs filed on behalf of the respective parties.

On October 4, 1968, the date on which the incident occurred which precipitated the plaintiff's lawsuit, the defendant was the Sheriff of Raleigh County and the plaintiff was a Deputy Sheriff of Raleigh County. At approximately 6:30 p.m. the city police of Beckley received a complaint that the plaintiff, who was off-duty at the time, was creating a disturbance on Prince Street behind the courthouse. A city police officer informed a deputy sheriff of the occurrence, who in turn notified the defendant at his home. The defendant drove into Beckley and upon receiving a radio message advising him that the plaintiff was at a place called Chi Chi's Grill in Beckley, the defendant proceeded there accompanied by Deputy Sheriff Eddy Jones. Upon entering Chi Chi's Grill, the defendant concluded from the plaintiff's actions that he was intoxicated, and the defendant told him he was going to take him home. The plaintiff denied he was 'drunk' and stated that he could drive his own car, but defendant thought otherwise and drove the plaintiff home in the plaintiff's car. The defendant directed the plaintiff to stay at home the remainder of the evening or the defendant would place him in jail. Deputy Sheriff Jones followed them to the plaintiff's home and the defendant and Jones then proceeded in Jones' car to the football game at Shady Springs.

The defendant and Jones worked the high school football game and after the game drove by the plaintiff's home and discovered that plaintiff's car was gone. Shortly thereafter, the defendant and the deputy found the plaintiff's car parked outside a tavern on Route 19--21 near Prosperity, West Virginia. The defendant entered the tavern and spotted the plaintiff standing at the bar with a beer in front of him. The defendant walked over to the plaintiff and arrested him for being intoxicated in public.

Plaintiff was taken to the city police station and was given a breathalyzer test which he agreed to take and it showed a .15 percent reading which indicated the plaintiff was intoxicated, according to expert testimony. Plaintiff was then booked and kept in the county jail from approximately 11 p.m. until about 5 a.m. the next morning when he was released on bond. The charge against the plaintiff was subsequently dismissed and plaintiff instituted this action.

During the trial the testimony of witnesses as to the sobriety of the plaintiff was conflicting. Numerous witnesses testified that the plaintiff appeared intoxicated on the night in question and numerous witnesses testified that he appeared sober. The plaintiff testified that he had drunk one 10 or 12 ounce glass of beer early in the afternoon and had one beer at Chi Chi's Grill. He testified that he was actively engaged in campaigning for the democratic candidate for sheriff in the general election and was selling 'Tickets for Democrats' at the various commercial establishments that he visited on the day in question.

It appears that there was considerable animosity among the deputy sheriffs as a result of the impending general election. By law, the defendant could not succeed himself as sheriff. During the primary election 24 of the 26 deputy sheriffs supported the losing candidate. The plaintiff was one of the two deputies who supported the winner. The plaintiff testified that the defendant's attitude toward him became hostile after the plaintiff selected the candidate he was supporting in the election. However, the defendant testified that he, the defendant, was neutral as to the outcome of the election and did not support any candidate. The defendant also testified that he was specifically looking for the plaintiff after he was informed that the plaintiff had caused a disturbance in Beckley and he stated that he did not want the city police to handle the matter because it was his policy to look after his own men.

The plaintiff was discharged by the defendant the day after his arrest but was reappointed as a deputy sheriff on January 1, 1969 when the new sheriff took office. The plaintiff claimed damages for loss of wages, as well as a $15 per month raise which went into effect July 1, 1969 for which he would have been eligible if he had not lost his seniority. However, during the period from October 5, 1968 until January 1, 1969 the plaintiff obtained another job which mitigated his damages.

The defendant assigned numerous errors in his brief which were not contained in the petition for the appeal and are not discussed or argued in his brief and thus will not be considered by this Court. The principal errors relied on by the defendant are: (1) That the trial court erred in giving to the jury Instruction Number C over the objection of the defendant; (2) the trial court erred in giving Instruction C offered by the plaintiff and Instruction 14 offered by the defendant, because they were inconsistent instructions; (3) the trial court erred in giving to the jury Instruction I--1 offered by the plaintiff. These assignments of error will be discussed in reverse order.

Instruction I--1 involved punitive damages but there was only a general objection to the giving of this instruction by the defendant. The objection contained in the record is as follows: 'The Defendant objects to Plaintiff's Instruction I--1 as not being supported by the evidence, and contrary to the law.' It has been repeatedly held that this Court will not consider instructions where only general objections are made thereto. Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736; Shaw v. Perfetti, 147 W.Va. 87, 125 S.E.2d 778; Fortner v. Napier, 153 W.Va. 143, 168 S.E.2d 737; Lambert v. Great Atlantic & Pacific Tea Co., W.Va., 184 S.E.2d 118. It was held in point 2 of the syllabus of the Lambert case that:

'The general rule is that no party may assign as error the giving of or the refusal to give an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly the matter to which he objects and the grounds of his objections and ordinarily this Court, in the exercise of its appellate jurisdiction, will consider only objections which have been made in this manner.'

Specific objections to the giving or refusal to give an instruction are required...