United States Fidelity & Guaranty Co. v. State

Decision Date09 February 1920
Docket Number20954
Citation121 Miss. 369,83 So. 610
PartiesUNITED STATES FIDELITY & GUARANTY CO. v. STATE TO USE OF HARDY
CourtMississippi Supreme Court
October 1919

INTOXICATING LIQUORS. Damages allowed for mental suffering caused by illegal search and seizure.

Where plaintiff when alighting from a train, intrusted her suit case to a transfer man and just after alighting, the city marshal searched the suit case for alcoholic liquors supposed to belong to the transfer man over his protest and without a search-warrant, in such case the defendant marshal was violating Constitution 1890, section 23, relating to unreasonable search and seizure and since he was presumed to know the law, his act was a willful wrong and mental suffering was a proper element of damages.

HON. D M. MILLER, Judge.

APPEAL from the circuit court of Copiah county, HON. D. M. MILLER, Judge.

Suit by the state of Mississippi for the use Mrs. Lola D. Hardy against the United States Fidelity & Guaranty Company and another. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

H. J. Wilson, for appellant.

Appellants agree with counsel for appellee that damages for mental pain and suffering are actual damages, as so ably contended in their brief, but earnestly insist that such damages even though actual, are sot recoverable where disconnected from physical pain and suffering and not result of a wilful wrong, again calling attention of the court to the authorities on this point cited in our first brief.

The greater part of appellee's brief is taken up in an effort to convince this honorable court that Furr acted wilfully and maliciously in searching Mrs. Hardy's suit case. The contention of appellants was that the jury is the sole judge of whether or not Furr committed a wilful wrong. Chicago, etc., R. R. Co. v. Scurr, 5 Miss. 456; Wilson v. Railroad Co., 63 Miss. 352.

It was certainly reversible error for the court below to determine this question and grant an instruction which, in effect, directed the jury to assess appellants with damages for all mental suffering sustained by the appellee, regardless of whether the same were the result of the defendant's acts, and regardless of whether or not Furr's act was willful.

The appellee was a young lady who broke down and cried before the jury while being cross-examined. While this is not in the record, we are sure that if the court will only read between the lines of Mrs. Hardy's cross-examination, it will be able to determine where the sobbing began and ended. Under such circumstances, it was easy for appellee to gain the sympathy of the jury and they would have been prone to grant her excessive damages under proper instructions and under an instruction directing them to return a verdict for damages for mental suffering without requiring them to determine whether such suffering was the result of a willful wrong, and the jury would have returned the same verdict that was returned here.

As a matter of fact, we do not think the court determined whether Furr committed a wilful wrong or not, but think the court granted this instruction through error in the law or some other mistake, for the testimony clearly shows that Furr thought he was only attempting to carry out his duty as marshal of the city of Wesson to protect the people from criminals and had no idea whatever that this suitcase belonged to Mrs. Hardy, or to anyone except Coker. Furr did not stop Coker on his own initiative, but was obeying instructions of the Mayor of the city of Wesson.

We submit that the whole testimony shows that Furr had no wrongful intentions whatever in searching this suit case, and that instead of intending to violate the law, he was attempting to perform his duty and prevent violations of law, and the testimony further shows that this was the version of this incident that was circulated in Wesson.

We submit that there is no contradiction in the testimony about Mr. Furr having acted wilfully. All the testimony, even that for the appellee, clearly shows that this was an honest mistake, and that the instruction given was erroneous on its face, for the court determines whether or not there is any evidence showing wilfulness. But even if the court thought there was a conflict in the evidence, this should have been submitted to the jury under proper instructions.

We call the attention of the court to a recently decided case of Monette v. Toney, 119 Miss. 846, which we think decides the question here involved favorably to appellants.

The instruction which the court below refused in that case and the supreme court held to be correct is very similar to instructions asked by appellant below and refused.

M. S. McNeil and Roberts & Hallam, for appellee.

It cannot be controverted that the peremptory instruction to find for the plaintiff given by the court below was eminently proper. The appellee's private and constitutional rights had been shamefully violated, and the defendants did not deny it, their only attempt being to minimize the enormity of the wrong. Where the wrong is not denied, but admitted, it is not only the right but the absolute duty of the court trying the case to peremptorily instruct for the party injured. We deem it unnecessary to cite authority.

The next proposition advanced by appellants is that damages for mental suffering are not recoverable under the facts. We have shown that the wrong committed was perpetrated without a search warrant or any sort of legal authority, and after notice given that the suit case belonged to a lady, as would be proved if Furr would only consent to wait a moment. But "clothed with a little brief authority" as he thought, Furr disregarded the warning and proceeded to search the suit case, and, even after having ocular evidence that the suit case belonged to a lady from the nature of the clothes it contained and without taking time to examine the outside of the case where he would have found the lady's name and address printed, proceeded "to raise them (the clothes) up and felt over them and mashed on them." We say his act was wilful; but if not wilful, he was so grossly negligent in searching this suit case without investigating as to it ownership, and without heeding the warning and notice given him by the party in possession of it, as that his act evinced a reckless disregard of the rights of the appellee to such an extent that it amounted to willfulness, and such is the law.

With this fact established, all of the cases cited by appellants, recognized the right of the appellee to recover damages for mental anguish as actual damages. The whole evidence and every part of it shows that the searching of the suit case in question manifested on the part of Furr a don't-give-a-darn-who-it-belongs-to spirit. If it had belonged to Coker, without a warrant and under protest as it was, the search would have constituted a wilful violation of the law and of his rights. And when Furr was told that it did not belong to him, but to a lady, the act constituted a wilful and contemptuous disregard of the rights of the person to whom it did belong, whoever that person might be. The appellant concedes that if the act was wilful, damages for mental suffering are recoverable as compensation for the wrong.

"Damages for mental pain and suffering, shame or mortification. Surely these injuries were real ones, and compensation for these would have been an award for actual damages." Hewlett v. Ragsdale, 68 Miss. 710.

"Wounding of a man's feelings is as much actual damages as breaking his limbs. The difference is that the one is internal and the other external, one mental and the other physical; in either case the damage is not measurable with exactness. There can be a closer approximation in estimating the damage to a limb than to the feelings, but at the last, the amount is indefinite . . . At common law, compensatory damages include, upon principle, and I think upon authority, salve for wounded feelings. Head v. G. P. Ry. Co., 79 Ga. 358, 360, 7 S.E. 217, 11 A. S. R. 434.

For wrongful search, mental anguish is recoverable as actual damages. Note to Shall v. M. P. & S. Ry. Co., 50 L. R. A. (N. S.) 1151. Sec. 23 of the Mississippi constitution reads as follows: "The people shall be secure in their persons, houses and possessions from unreasonable search or seizure; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized." As that mental anguish for a wilful violation of this constitutional provision under all the authorities is recoverable as actual damages.

Punitive and exemplary damages, even, are recoverable for any wilful disregard of the rights of another. Telegraph Co. v. Watson, 82 Miss. 102; C. R. C. R. R. v. Scurr, 59 Miss. 456; V. & M. R. R. Co. v. Scanlan, 63 Miss. 413; M. & C. R. R. Co. v. Whitfield, 44 Miss. 490, 491, 492; W. U. T. Co. v. Teague, 117 Miss. 401, 78 So. 610; Dickerson v. W. U. T. Co., 74 So. 779.

Complaint is made because of the giving of the instruction on mental anguish to be found at the bottom of page 7 of the record on the further ground that the jury was not instructed that...

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