Weaver v. Ficke

• Decision Date: 06 March 1917
• Citation: 192 S.W. 515,174 Ky. 432
• Parties: WEAVER v. FICKE.
• Court: Kentucky Court of Appeals

192 S.W. 515

174 Ky. 432

WEAVER v. FICKE.

Court of Appeals of Kentucky.

March 6, 1917

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by George Ficke against J. J. Weaver and others. From a judgment for plaintiff, the named defendant appeals. Affirmed.

Myers &amp Howard, of Covington, for appellant.

O. M Rogers, of Covington, for appellee.

CLAY C.

In this action for damages for malicious trespass, plaintiff, George Ficke, recovered of the defendants, J. J. Weaver and J. V Hunt, a verdict and judgment for $500. Only Weaver appeals.

The facts are as follows: Weaver is the president of the Ludlow Realty Company, which owns the Lagoon, near Ludlow. The Park Amusement Company, a corporation, was the lessee of the Lagoon property, and was conducting an amusement resort there. Weaver was the general manager of the Park Amusement Company, and resided in the clubhouse located on the premises, and had charge of its property. J. V. Hunt was the secretary and treasurer of the Park Amusement Company, and resided in Cincinnati. Julius Kress was in the employ of the same company, and acted under the immediate supervision of Weaver in looking after the premises. For the purpose of consuming the garbage from the clubhouse, the Park Amusement Company purchased a few hogs, which were placed in a pen some distance from the resort. Plaintiff, Ficke, was in the employ of the Cincinnati, New Orleans &amp Texas Pacific Railway Company as yard foreman, and occupied a tract of land back of and near the Lagoon. He also was engaged in raising hogs. A contractor, who had a number of negro hands, was engaged in doing some track work for the railroad company. The hands were encamped in the rear of the Lagoon. The garbage from the camp was purchased by plaintiff and fed to his hogs. Kress discovered a barrel of slop which had been left at the site of the negro camp. Thereupon he hauled it to the Lagoon pigpen. There is evidence to the effect that plaintiff, finding that his slop had been removed to the Lagoon pigpen, became angry and threatened to get even with the man who had removed it. The morning after Kress had removed the slop he found that one of the hogs in the Lagoon pen had been killed and about one-half of the hog was missing. This information was communicated to Weaver by Kress. Thereupon Weaver telephoned to the defendant Hunt in Cincinnati. On the same day Hunt visited the Lagoon, conferred with Weaver and Kress, and then went before the county judge, made affidavit for a John Doe search warrant, and had the search warrant placed in the hands of the sheriff, who delivered it to three deputy sheriffs for execution. Thereupon the officers reported to Weaver at the clubhouse, and, accompanied by Kress, went to plaintiff's home. Upon their arrival there in the evening they immediately proceeded to search plaintiff's residence, barn, and outhouses.

In its instructions the trial court told the jury, in substance, that the search warrant was void and conferred no authority on the officers for the invasion of plaintiff's property. They were further told to find nominal damages for plaintiff against the defendant Hunt, and also against the defendant Weaver, if they believed from the evidence that Weaver aided or advised the procurement of the search warrant and the invasion of plaintiff's property under and by virtue of the warrant. A finding of punitive damages against Weaver was also authorized, in the event the jury believed from the evidence that the defendant Weaver acted maliciously or wantonly in aiding or advising the procurement of the warrant and the invasion of plaintiff's property.

Section 10 of the Bill of Rights of our Constitution provides, among other things, that:

"No warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation."

Here the search warrant did not describe the premises to be searched, or even give the name of the owner of the premises. It follows that the trial court did not err in holding that the search warrant was invalid and conferred no authority on the officers to search plai...