Walker v. Graham

• Citation: 172 So. 655,233 Ala. 539
• Decision Date: 18 February 1937
• Docket Number: 6 Div. 901
• Parties: WALKER v. GRAHAM et al.
• Court: Supreme Court of Alabama

172 So. 655

233 Ala. 539

WALKER v. GRAHAM et al.

6 Div. 901

Supreme Court of Alabama

February 18, 1937

Rehearing Denied March 4, 1937

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action for trespass by W.L. Walker against R.J. (Bob) Graham and another. Judgment for defendants, and plaintiff appeals.

Reversed and remanded.

W.A Denson, of Birmingham, for appellant.

Wilkinson & Wilkinson, of Birmingham, for appellees.

THOMAS Justice.

The suit, by appellant, a member of the partnership known as "Five Mile Barbecue Stand," against appellee Graham, a deputy sheriff, and others, was to recover damages for the wrongful search of the plaintiff's premises by the defendant Graham and other deputy sheriffs.

Demurrers to the several counts (1, 2, and 3) of the complaint as amended, were overruled. Defendants replied with pleas 1 and 3. Plaintiff's demurrer to plea 3 was overruled as answer to counts 1, 2, and 3, and sustained as answer to count 4. Plaintiff refiled a replication to plea 3, and demurrer to the special replication was overruled. Issue being joined the verdict and judgment was for the defendants.

Counts 1, 2, and 3 were for trespass; count 4, for a wanton wrong in that the defendant Graham "did wrongfully, maliciously, and without probable cause therefor (under the color of his office), procure a search warrant," known to him at the time of its issue to be false and without foundation of fact. 21 R.C.L. p. 456, § 21.

When this case was before the court on former appeal (Walker et al. v. Graham et al., 228 Ala. 574, 154 So. 806), it was held that the replication to plea 3 was good and sufficient, and that count 4 should have been allowed. The pleas and replication on the last trial were the same as those approved on the first hearing. Walker et al. v. Graham et al., supra.

On the last trial the complaint was amended by striking out as a party plaintiff L.C. Walker, leaving only W.L. Walker as plaintiff; by striking out as parties defendant Harry N. Curl, J. Frank Dowis, Willam O. Downs, and United States Fidelity & Guaranty Company, leaving as defendants only R.J. (Bob) Graham and Fidelity & Deposit Company of Maryland, surety on Graham's official bond.

On the last trial, after the witnesses and one of the plaintiffs, L.C. Walker, had testified on direct examination for plaintiffs, and while L.C. Walker was on the stand for cross-examination, defendants' attorney introduced the search warrant in evidence, and without cross-examining plaintiff's witness Walker, rested defendants' case; plaintiff's attorney likewise resting his case. "Upon this evidence and no more the Court charged the jury orally." Defendants requested affirmative charges which were refused. The cause being submitted to the jury, without examination by defendant of any witness whatsoever, or any other testimony, resulted in a verdict for the defendants, from which plaintiff, W.L. Walker, appeals.

The burden of proof under such pleading rested upon the plaintiff. McMullen et al. v. Daniel, 229 Ala. 194, 200, 155 So. 687; Gulsby v. Louisville & Nashville R. Co., 167 Ala. 122, 52 So. 392; Sims v. Kent, 221 Ala. 589, 130 So. 213.

It is further decided that in a joint action against an officer and the surety on his official bond, punitive damages are not recoverable. Such was the pleading as to Graham and the surety on his official bond, made defendants. Holland v. Fidelity & Deposit Co. of Maryland et al., 225 Ala. 669, 145 So. 131; Kilgore v. Union Indemnity Co., 222 Ala. 375, 132 So. 901; Hain v. Gaddy et al., 219 Ala. 363, 122 So. 329. The trial court correctly instructed the jury under the pleading on this phase of the case, and there was no error in giving defendants' charges 14 and 18 duly requested in writing, viz., that the only damages the jury were authorized to award in this case were compensatory damages. Holland v. Fidelity & Deposit Co. of Maryland et al., supra.

The court, in his general charge, defined the issues to be determined, and instructed the jury as follows:

"The plaintiff claims that on account of this search and seizure--I mean this search of his place of business, which was also his home--that it was invasion of his rights and an invasion of his home, and he claims that as a proximate consequence of that wrong, that wrongful search, there, that he was humiliated and chagrined and embarrassed, that there were people there, and that he was embarrassed and chagrined and suffered physical and mental pain and was injured in that regard.

"Now, gentlemen, damages of that character, there is no way to measure. Under the law we have no yardstick to give you gentlemen to determine what would be reasonable compensation for injuries of that character, in event you find for the plaintiff, and it is left to the sound discretion of you gentlemen trying the case to determine from all the evidence in the case what would reasonably compensate the plaintiff for any chagrin, embarrassment or humiliation or physical and mental pain that he suffered as a proximate consequence of the officers coming there on that occasion and making this search."

There was no error in giving defendants' charge No. 12. It stated the law of such a case when referred to the search warrant in evidence, which was in due form and issued by J.G. Brooks, ex officio judge of Jefferson county court of misdemeanors. The process appeared regular on its face, was issued by competent authority, and the deputy sheriff duly receiving the same was justified in executing the search warrant. Sections 10192, 10193, 10197, Code 1923; Walker et al. v. Graham et al., 228 Ala. 574, 154 So. 806.

The replication to plea 3 avers that the warrant that defendant officer swore out was false and without any foundation in fact; that the officer "swore out said warrant solely out of malice and ill-will toward the plaintiffs, and for the purpose of injuring them in their business, well knowing at the time that the matters and things which he swore to in said warrant were untrue and without any foundation of fact." The plural as to the plaintiffs in this replication was singularized, by amendments and eliminations in the pleading, to W.L. Walker, who testified in his own behalf. The trial court so limited the inquiry of fact as to said Walker by the general charge. Poole v. Fletcher, 233 Ala. 54, 169 So. 868.

Assignments of error 5 to 9, inclusive, relate to the rejection of plaintiff's evidence by the witness Yancey, who testified in substance that he knew the said Walker; was acquainted with the Five Mile Barbecue Stand on the date of October 25, 1930, and stopped there occasionally. Witness was asked, in effect, if he ever smelled any liquor when he went in the barbecue stand; if he saw any signs of drinking around there at any time; if he knew of any liquor being sold there at any time, and of anybody being drunk in that place at any time before this proceeding. The court sustained objection to the question: "From observation, all right, now, then, from what you talked with them in the community there, the general talk of the community, what was that in regard to that stand at that time?" To which there was exception by the plaintiff. Such inquiry was res inter alios acta as to Graham's action, and his and his surety's liability at the time he acted--when he swore out and executed the search warrant. It was not evidence of the nature of the information on which the officer acted in procuring the issue of the search warrant and in the execution thereof. McMullen et al. v. Daniel, supra.

In Gulsby v. Louisville & Nashville R. Co., 167 Ala. 122, 128, 129, 52 So. 392, 394, this court declared:

First, of malice: "Malice has been thus well defined by this court: 'Whatever is done willfully and purposely, whether the motive be to injure the accused, to gain some advantage to the prosecutor, or through mere wantonness or carelessness, if at the same time wrong and unlawful within the knowledge of the actor, is in legal contemplation maliciously done.' Lunsford v. Dietrich [93 Ala. 565, 9 So. 308, 30 Am.St.Rep. 79]; Jordan v. Alabama G.S.R. Co., 81 Ala. 220, 8 So. 191. Personal ill will, or desire for revenge, is not essential to the existence of malice as the law views it. Lunsford v. Dietrich, supra."

Second, of probable cause: "Probable cause was also defined in Lunsford v. Dietrich, supra, as follows: 'A reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged.' Mere suspicion and belief, even though honestly, bona fide entertained, of the guilt does not, as readily appears, alone, rise to the dignity of affording a basis for probable cause. It is essential that, at the time the oath or affirmation is taken or made, the actor then knew of facts or circumstances such as would have justified a reasonable and cautious man in believing that the accused was guilty. Lunsford v. Dietrich, supra. Less than that cannot be probable cause." 167 Ala. 122, 128, 129, 52 So. 392, 394.

The test of probable cause is whether the information, on which the affiant acted in swearing out the warrant to justify his action in the respects here pertinent, was such as to lead a man of ordinary caution to so act, with impartiality and without prejudice, and with the conscientious belief that such cause existed for the action taken. Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794; Stouts Mountain Coal Co. v. Grubb, 217 Ala. 274, 116 So. 156; Parisian Co., Inc., et al. v. Williams, 203 Ala 378, 83 So. 122; Boshell et al. v. Cunningham, 200 Ala. 579, 76 So. 937; Lunsford v. Dietrich, 93 Ala. 565, 569, 9 So. 308, 30 Am.St.Rep....