Sugar Valley Land Co. v. Johnson

• Decision Date: 06 April 1920
• Docket Number: 7 Div. 619
• Citation: 17 Ala.App. 409,85 So. 871
• Parties: SUGAR VALLEY LAND CO. et al. v. JOHNSON.
• Court: Alabama Court of Appeals

85 So. 871

17 Ala.App. 409

SUGAR VALLEY LAND CO. et al. v. JOHNSON.

7 Div. 619

Court of Appeals of Alabama

April 6, 1920

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Action by D.H. Johnson against the Sugar Valley Land Company and another for damages for trespass. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Officer is limited in search by provisions of search warrant, but is not guilty of trespass if he seizes stolen property.

Count 5 is as follows:

Plaintiff claims of the defendant the sum of two thousand dollars as damages for wrongfully taking the following goods and chattels, the property of plaintiff: [Here follows a description of the articles taken.]

The following is count 11:

The plaintiff claims of the defendant the further sum of two thousand dollars damages, for that heretofore, to wit, on the 8th day of January 1918, the defendants, acting through their agent or servant maliciously and without probable cause therefor did procure a search warrant from L.L. Herzberg, judge of the county court of Etowah county, Alabama, to search the tool chest of the plaintiff at Southern Railway depot for two wrenches, one block, one flue expander, lot of small tools and valves, and to seize the same, or parts of the same, and to carry the same before said judge immediately, and that the sheriff under and by virtue of said search warrant, broke open the tool chest of plaintiff, as he was directed to do by said warrant, and removed therefrom one wood block, twenty-six pieces of pipe fittings, three check valves, one 24-inch Stilson wrench, sixteen cold chisels and corking tools, one punch, one file, two globe valves, one gauge cock, one spike maul, one engine throttle, and one pound hemp engine packing on the same, which said property was and is the property of this plaintiff, and carried the same before said judge of the county court, who judicially investigated said search warrant and seizure of said property of the plaintiff, and ordered said property returned to this plaintiff, and dismissed said search warrant, to his damage as above stated.

Count 13:

The plaintiff claims of the defendant the further sum of two thousand dollars damages, for that heretofore, to wit, on the 1?th day of January, 1918, the defendants, acting through their agents or servants, maliciously and without probable cause therefor did procure a search warrant from L.L. Herzberg judge of the county court of Etowah county, Alabama, commanding any lawful officer of the state of Alabama to search boxes and tool chest of plaintiff in this suit, at the Southern Depot, North Fourth street, Gadsden, Alabama, for one flue expander, two open end wrenches, and lot of other tools alleged to be concealed therein by this plaintiff, and which was alleged to be the property of the defendant the Sugar Valley Land Company, and to seize the same, or parts of same, and bring them before said judge of said county court immediately, and that the sheriff of Etowah county, accompanied by the agent or servant of defendants, who procured the issuance of said warrant, under and by virtue of said warrant and the direction therein, went and broke open the boxes and tool chest of this plaintiff and removed therefrom two hammers, two open end wrenches, one chisel bar, one lever for flue expander, one cold chisel, and other property described. On same day said warrant was issued, and carried the same before said judge of said county court, who judicially investigated said search warrant and seizure of said property, and ordered said property returned to plaintiff in this suit, and dismissed said search warrant, to his damage as above stated.

The demurrers raised the question of two distinct causes of action in one count; does not state a cause of action; does not appear that said search warrant directed a search of plaintiff's tool chest; does not appear that the property seized was the property of the plaintiff; does not appear that the warrant was maliciously sued out, or without probable cause, etc.

The bill of exceptions shows the following:

Just as the judge finished the oral charge to the jury, before he read to the jury the written charges, while the jury was still in the box, and before it retired to consider its verdict, each of the defendants separately and severally excepted to the following portions of the oral charge to the jury: "Together with whatever amount you think would deter this defendant or these defendants, from committing a like wrong again."

Also to the following: "And such damages as you think plaintiff ought to have for the humiliation, if you find he was humiliated with this wrong."

Also the following: "That is punitive damages, damages inflicted on the plaintiff, because of the wrongful act by defendant through its agents."

Also the following: "The sheriff's authority to break open and search was named within the four corners of the paper issued by the county court, and when he went beyond the authority contained in the four corners of the search warrant, and seized other property not named or mentioned in the search warrant, he then became a trespasser, and took that which under the law he had no right to take."

Also the following: "The notation made on this paper by Judge Herzberg is a judicial finding, or the minutes of this court; that is what Judge Herzberg found, regardless of what other instructions he may have given; that is a judicial determination of this prosecution."

Hood & Murphree, of Gadsden, for appellants.

Motley & Motley, of Gadsden, for appellee.

SAMFORD J.

Count 5 of the complaint followed the form prescribed in the Code and was not subject to demurrer. The eleventh and thirteenth counts of the complaint claimed damages for the malicious suing out of a search warrant. The counts did not allege that the charge, before the commencement of this suit, had been judicially investigated and the prosecution ended, and plaintiff discharged, but this point was not taken by demurrer. The demurrer as filed to counts 11 and 13 was properly overruled. Code 1907, § 5340.

The plaintiff's counsel, over the timely objection and exception of defendant, was permitted to ask plaintiff, testifying as a witness, "What effect did keeping your tools have on your work?" and when answered, "A lot of fittings belonged to my pump, and I wanted to use them," defendant moved to exclude the answer, which motion the court overruled, and the defendant excepted. The grounds of objection to the question and answer were set out. Damages arising out of plaintiff's inability to use a pump on account of the trespass complained of--i.e., the seizure of certain fittings--are too remote and speculative to be recovered in this action. Nelms v. Hill, 85 Ala. 583, 5 So. 344; Street v. Sinclair, 71 Ala. 110. Nor are such damages recoverable under the counts charging malicious prosecution.

After considering this entire record, we cannot say that this was error without injury, under rule 45 of the Supreme Court (61 South. ix). In cases like this, embracing charges and...