Opinion
12544
December 7, 1928.
Before SHIPP, J., Florence, May, 1927. Affirmed.
Action by William A. Warr against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals.
The charge of Judge Shipp and his remarks in refusing a motion for directed verdict are as follows:
"Mr. Foreman and Gentlemen of the jury, the plaintiff in this case, William A. Warr, brings this suit against the Atlantic Coast Line Railroad Company. In his complaint he alleges now on the last day of August, 1920, that the defendant, the Atlantic Coast Line Railroad Company through its agents unlawfully and illegally and without any authority of law entered upon the premises of the plaintiff and made an illegal search of his premises and took certain articles of personal property from the plaintiff and has refused to return the articles to the plaintiff on demand. He says the act of the defendant was wilful, wanton and oppressive, and done in a high-handed manner, and he has been damaged in the sum of Three Thousand ($3,000.00) Dollars. By an amendment that was made in open Court, he names the agents. I don't remember the names. He alleged also a list of articles which they claim were taken from the house. The defendant here denies the allegations of the complaint.
"I charge you, Mr. Foreman and Gentlemen of the Jury, that, if the Railroad Company, acting through its agents authorized to act for it and to do the things complained of in the complaint, if they unlawfully and illegally entered upon the premises of the plaintiff, without lawful authority, and took the goods or assisted in taking the goods, unless there was lawful authority for it, why the Railroad Company would be liable for the acts of its agents, provided they were acting in the line of the authority conferred on them, conferred upon them by the Railroad Company. A corporation like a railroad company can act only through agents, and it has a right to appoint agents to do certain things for it as long as the agents are doing the things authorized to be done by the Railroad Company, if they do these things illegally that they are authorized to do, the Railroad Company would be liable. If they do a wilful act, the Railroad Company would be liable for the wilful act, provided they were acting in the line of authority conferred on them by the Railroad Company.
"I charge you, Mr. Foreman, that Magistrates in the County and in the State are authorized by law to issue what is known as search warrants, and where a city such as Florence has what is known as a Recorder's Court, there is a statute which says that the City authorities, the Mayor, or Intendent, Recorder may do the same things, the same authority is conferred upon the authorities in a City such as Florence — the same power that a Magistrate has is conferred upon the town authorities, the Mayor, Intendent or Recorder, such as they have in Florence. I charge you that, if the alleged agents of the Railroad Company were armed with a lawful search warrant, issued by a competent authority, either by a Magistrate, or Mayor or Recorder of the City of Florence, if they were authorized to make the search of the premises of C.C. Warr and the premises were described in that paper and they were authorized to search the house occupied by C.C. Warr, they would have a right to search the premises occupied by him, although there may have been persons rooming in the house. Where an officer has a search warrant to search a certain house for stolen property, why they have a right to search the house, if they have got the house described in the search warrant, they have a right to search it. Of course you use common sense. They have a right to find the goods which they are authorized to search for. They have got a right to search the house or any part of the house in order to find the goods described in the search warrant. There are certain requisites about a search warrant, and I am not able in this case to construe the search warrant alleged to have been issued in this case, because the paper has not been presented to the Court, and the testimony here, being oral, it is for you to find out whether or not the search warrant authorized the persons executing it to do what they are alleged to have done. We have a statute here that provides as follows in reference to a search warrant, Section 46 of the Code of Criminal Procedure: (Reads Section 46 to the jury). I will tell you that a Recorder also has authority to issue search warrants. (Continues to read the above Section.) So you see now it is necessary for a search warrant to describe the place that an officer is authorized to search. You must describe the house or property so the officer having the paper can find out the house he has to search. The search warrant on its face ought to tell the goods — describe the articles he is to look for that are alleged to have been stolen. When an officer is armed or anyone goes to assist an officer that is armed with a search warrant that appears to be regular on its face, he is authorized to do the things he is authorized to do in the search warrant, although it may turn out that the goods alleged to have been stolen were not stolen goods, if he has the proper legal authority to make the search and seize the goods and takes the goods described in the search warrant, that would protect him against any charge of trespass, if he acts under the paper that appears to be regular on its face. That is common sense. You take a Sheriff here, and he is given a search warrant. He has no means in the world of knowing the thing, he acts under the authority of the paper, and he has no way of finding out. He does not have to go and see whether or not the person issuing the paper has done a wrongful act in issuing it. He has a right to act on the paper — it is a complete justification against any suit for damages as long as he acts according to the authority given him in the search warrant. If an officer of the law is authorized to take certain goods described in the search warrant, he would not do an unlawful act in doing that. He can do what he is authorized to do in the paper. It is for you to say from the testimony here whether the alleged agents of the Railroad Company, if you find they were agents, if they acted under legal authority. If they acted in accordance with the terms of the search warrant. I charge you if they did, all of the charges of trespass against them would be answered by the search warrant. Where they acted under the search warrant. If they went there and took goods of the plaintiff that they were not authorized to take under the paper, they would do an illegal act, and the Railroad Company would be liable to the plaintiff for the value of the goods, the highest market value of the goods up to the time of the trial. If you find that they took goods of the plaintiff that they were not authorized to take under the warrant, if they did it illegally, they would be liable as in the case of conversion for the value of the property at the highest market value up to the time of trial. You may estimate the value from the time of taking up to the time of the trial — the highest value that you find.
"Where a person does an unlawful act and he acts in good faith about it — suppose I go and take some one else's property, thinking I have a right to take it, and it turns out I have taken the property wrongfully, — the law says I would have to pay him for the value of the property, if I converted the property, disposed of it — I would have to pay the actual value of it. If I go out and take the property, knowing I have no right to take it — if I know I am invading his rights in doing something I have no legal right to do, and I know — where a person does something wrong, he does a wrong to another person, the law says you must pay him the amount of the injury the actual amount of the damage that you did him. If you go out and do a wrong to him wilfully, that is doing a wrong to him, knowing at the time that you are doing a wrongful act to him, it may be you will not only have to pay actual damages but punitive damages, which is not for compensating a person, but by way of punishing the person doing it. It means punishing a person who does a wrong and knows he has done a wrongful act. It is sometimes called smart money. The idea is that you want to punish the person that has done a wrongful act, knowing at the time he does it it was wrong. The law would not make a person pay punitive damages unless you find the act was wilful and wanton. I might do you a wrong, and I may have the utmost good faith about it. If I do you a wrong, although I might think I was doing all right, and it turns out I didn't have the legal right to do what I did, I would be liable for actual damages, if I knowingly do an unlawful act, it not only calls for actual damages, but punitive damages. It is alleged by the plaintiff that the Railroad Company, through its authorized agents took his goods without their consent. It would then be up to the Railroad Company to excuse itself by showing it acted under proper legal authority. It is a question for you, as I said to you, it is a question for you to judge. Ordinarily where a paper is put in evidence and the Judge can see the paper, the law requires the Judge to construe the paper and tell the jury whether the paper gives lawful authority to do certain things, but when the paper is lost or is not put in evidence and they undertake to show by testimony from witnesses the contents of the paper, why, then it becomes a question for the jury. You are the judges of the facts and judges of the oral testimony given in the case. It is for you to say.
"The law requires a search warrant to contain certain things. When a Magistrate issues a warrant or a Recorder, the law requires that they have a person thereto make an affidavit — an affidavit setting forth the circumstances calling for the issuance of a warrant. The law says before he can issue a warrant, it must be supported by an affidavit — he must have before him evidence of probable cause to issue the warrant.
"I am not expressing any opinion about the case at all. I have told you if officers were armed with a paper which appeared to be regular on its face that they are justified in doing the things authorized to be done by the paper. I charge you this, that a Magistrate or Recorder would have no right to go and sign a search warrant in blank and give it over to the officers and allow them to go and fill in the place to be searched. What is done has got to be done by the Magistrate or Recorder himself or by someone under his direction. They have no right to give blanks to officers and let them act without his knowledge or consent about it. I mean without his knowing exactly what was in the paper. I charge you that, if a Magistrate or Recorder should issue a paper of that sort and it was filled in out of his presence and without his knowledge, and if that paper was delivered to an officer and he knew that it was that way, he knew of the illegality of it, if he knew it was an illegal paper, he would have no right to act under the paper, under a paper of that sort.
"It is a question for you to decide. I am not expressing any opinion. I have no right to express an opinion as to the legality or illegality of the paper. You judge that from the testimony.
"Mr. Foreman if the plaintiff has made out his case by the greater weight of the testimony, you write on the back of the summons and complaint: `We find for the plaintiff so much,' if you find actual damages, say we find for plaintiff so much actual damages, and if you find punitive damages, so much punitive damages, so that the Court will know whether you gave punitive damages and actual damages. By preponderance of the testimony you don't count the number of witnesses who testified on one side or the other. You determine that by, you being the judges of the credibility of the witnesses here, you determine that — you judge it by the strength of the testimony you believe. If you are satisfied as to the truth of plaintiff's case, the testimony satisfies you that the plaintiff has proven his case by the greater weight of the testimony, you give him a verdict for actual and punitive damages, if you find he has made out his case for both sorts of damages. If, on the other hand you find out he has failed to make out his case, you find a verdict for the defendant. If it is evenly balanced, so you cannot tell which is the heaviest testimony, you give a verdict for the defendant, because plaintiff must prove his case by the greater weight of the testimony. If you believe the defendants acted under lawful authority, under the law as I have given it to you, then you find they acted under lawful authority and did what the law authorized them to do, then you find a verdict, for the defendant.
"Anything else, Gentlemen.
"Mr. Wilcox: There is just one matter I would like to suggest. My recollection is there is testimony that when this warrant was read Warr denied having anything, but consented or invited these people to come on in. If the jury should believe that, I would like for your Honor to tell them what the result would be.
"The Court: If a person gives you permission to search a house, he cannot complain of a trespass, if you did it with his consent. If he consents because he is misled by believing they had a lawful authority if the consent was obtained by representing they had lawful authority and it turned out they did not, that would be a trespass. If the other side knew they didn't have authority and permitted them to go in, they would not be trespassers. When he gives consent it robs it of the idea of trespass.
"I have charged you the law as I understand it, and you may retire and reach your verdict accordingly.
"The Court: It seems to me, I cannot grant the motion for a directed verdict for this reason, if the search warrant were here so that I could construe it, that might throw a good deal of light on this case. We are in this position. The testimony about the search warrant is entirely oral, which makes it a question for the jury as to whether they had a search warrant supported by an affidavit. Nobody has a right to issue a search warrant unless supported by an affidavit and a search warrant must particularly describe the place to be searched, give the circumstances surrounding the transaction and describe the things to be searched for, and it must be supported by an affidavit. I think the plaintiff might have rested his case by proving that these men were Police Officers of the Railroad Company and that they were down there taking part in this thing. If they went there and took the goods, it would be up to them to show that they were justified in it — they should undertake to show they were justified in it by saying they were acting under a search warrant. He is suing here for the unlawful taking of their goods and converting the goods, and also for punitive damages in that it was wilful and wanton. I think his case would be proved by showing these goods were in their possession, in the possession of plaintiff, and that some officer of the Railroad Company, acting in the line of his duty in the line of his authority, took the goods from him. It would rest with the person who took the goods to excuse their conduct by showing they acted under legal authority, which you have undertaken to do by saying they acted under process of law. As I say the paper is not here and the Court cannot construe the paper and tell the jury as to whether the requisites of the law were complied with on the face of the paper or not. That is to be derived from the oral testimony, which is entirely for the jury and not the Court.
"Mr. Wilcox: What about the question? That the only testimony at all is that the search warrant was regular on its face, and the testimony of everyone of the witnesses is that they knew of no reason why it was not perfectly valid.
"The Court: There is some testimony from which the jury might draw the inference that the search warrant was gotten up in the absence of the Recorder and was filled in by the Chief of Police. I don't know what the jury might say to that, if they knew now, although the paper was valid on its face, if they knew it was an illegal paper.
"Mr. Wilcox: Is there any evidence they did know it?
"The Court: There are circumstances surrounding it which makes it a question for the jury. I don't know myself, except the testimony of Mr. Wetmore.
"Mr. Wilcox: Isn't there a presumption as to a warrant?
"The Court: There is a presumption — You are undertaking to justify under this search warrant, and I think it it up to you to show, if he shows they took these goods, without their consent, it is up to you to show that the search warrant authorized the search of the premises in question and the taking of the goods. That is my view of it. I will charge the jury to that effect. My idea is this, if a search warrant is valid on its face, and given to an officer, although the warrant may be illegal, if it appears to be regular and is given to an officer of the law, he has no way of knowing that it is not. I will also hold, if a Magistrate signs his name to a search warrant in blank and gives it over to an officer and authorizes him to act, to go and fill it out, and the officer knows it was done that way, I would hold that that was an illegal paper and let the jury come to their conclusions about that. The law here says: (Reads section of Code in reference to issuance of warrants by Magistrates and Recorders.) Those are the requisites of a search warrant, and not having the paper before me, I cannot tell what it is. That makes it a question for the jury and not the Court.
"Mr. Wilcox: Would your Honor hold or charge the jury rather that if an officer having in his possession what he designates as a search warrant, and it is regular on its face, and he asked that I join him in making the search, and I did so —
"The Court: I would hold that, if an officer had a search warrant — he had a right to call to his assistance other persons to help him.
"Mr. Wilcox: Do I go at the risk of being put in jail or sued for damages if it turns out that the warrant was not regular?
"The Court: I would hold you were justified in acting on the paper which on its face was regular, unless you at the time knew it was not. The Sheriff has got to act on them. He has no way of knowing, except by the paper given to him. It must be accompanied by an affidavit and the paper must be signed by a proper officer, and the Sheriff has a right to act under that paper and couldn't be held for any wrong done to anyone, if he acts under the paper.
"Mr. Wilcox: I would like for your Honor to direct a verdict so far as punitive damages are concerned against the Railroad Company. I don't think there is any evidence here from which the jury could properly find that there was any such wilful or reckless conduct as would allow the assessment of punitive damages against the defendant.
"The Court: I could not do that, because, if the jury comes to the conclusion — I am not expressing any inferences what they must find from this testimony, because there is testimony both ways — if an officer had a paper which he knew or if he was called on to assist an officer and the person called on to assist knew the paper was illegal and went ahead and acted on what he knew was an illegal paper, why the jury might draw the inference that they did an unlawful act, and he did it knowing he was doing wrong, and for that reason I cannot direct a verdict on punitive damages."
Mr. F.L. Willcox, for appellant, cites: Presumption is that officer has done his duty: Rich. Eq., 122; 2 Bail., 549; 10 R.C.L., 880. Officer who executes illegal warrant liable; one accompanying not liable: 24 R.C.L., 726. As to propriety of search without warrant: 275 U.S. 192.
Mr. Philip H. Arrowsmith, for respondent, cites: Cases distinguished: Rich. Eq., 122; 2 Bail., 549. Presumption that officer properly discharged duty only in absence of evidence to the contrary: 10 R.C.L., 880.
December 7, 1928. The opinion of the Court was delivered by
This action was instituted by the plaintiff on August 27, 1924. The complaint alleged that on August 31, 1920, the defendant, through "its agents, servants and employees, without any legal right or lawful authority, entered into and upon the premises, property and home of the plaintiff and there wilfully, wantonly and maliciously, in a highhanded and oppressive disregard of the rights of the plaintiff, made search of his premises and seized and took away therefrom certain articles of property belonging to the plaintiff, to which the defendant had absolutely no right, and notwithstanding the repeated requests and demands of the plaintiff to return the said personal property, it has in a highhanded, wilful and malicious disregard of the rights of the plaintiff refused to return and restore his property to him, all with intent to embarrass and humiliate and annoy the plaintiff, to his damage, actual and punitive, in the sum of Three Thousand and 00/100 ($3,000.00) Dollars."
On motion of the defendant, the plaintiff was required to make his complaint more definite and certain by stating that the premises searched and from which the property was taken were at No. 104 North Jarrott street in the city of Florence; and to specify the articles alleged to have been removed by the employees of the defendant.
The defendant entered a general denial. It endeavored on the trial to show that the entry of the premises and the search thereof, and the taking of the property alleged by plaintiff to have been seized, were all done pursuant to a valid search warrant directed to police officers of the city of Florence, which required a search of the home of Clyde Warr, a son of the plaintiff, for certain stolen goods.
The trial was in the Court of Common Pleas for Florence County before Hon. S.W.G., Shipp, circuit Judge, and a jury, on May 17, 1927. The verdict was in favor of the plaintiff for $135, as actual damages, and $500, as punitive damages.
The defendant has appealed from the judgment entered on six exceptions.
The appellant has argued all the exceptions together, and we think they may be so disposed of. The first five of these relate to the refusal to direct a verdict in favor of the defendant, and especially so as to the issue of willfulness. A brief statement of these exceptions shows the positions of the appellant to be as follows: That a search warrant was obtained by duly appointed police officers of the City of Florence, who were in no sense employees of the defendant, upon information furnished and affidavit made; that the search under that warrant was made under the direction and authority of those police officers, and that there was no testimony that employees of the defendant took any part in the search, except under the direction of the police officers; if there was any irregularity in the search warrant, or the issuing thereof, the same did not appear upon the face of the paper, and there was no testimony that defendant's employees had knowledge of any irregularity in the warrant, or lack of authority in the officers who issued and served it; that the Court should have held that the search warrant was regular on its face, and the jury should not have been allowed to infer from the testimony submitted that it was irregular, or that the employees of the defendant, who participated in the search, had any knowledge of such irregularity; and defendant was in no way liable for punitive damages, because its servants at the time were acting in a perfectly proper way in an endeavor to enforce the laws of the state.
The sixth exception imputes error to the trial judge in charging the jury as to the effect of a search warrant, signed in blank, by a magistrate or recorder, and later filled in by a constable or a chief of police, thereby leaving the jury to infer that there was testimony to this effect, although, as a matter of fact, there was no such testimony. As we understand it, this last exception does not question the correctness of the law on the subject referred to, as given by the circuit Judge, but rather it contends that the charge as given was not responsive to the evidence in the case.
Since it seems to be conceded by both parties, with the slight exception hereinbefore adverted to, that the trial Judge correctly instructed the jury as to the law, it seems only necessary for us to review the facts adduced from the evidence of the witness for both plaintiff and defendant, with the purpose of ascertaining if, under the law, the case should have been submitted to the jury on both the issues of actual and punitive damages.
The wife of the plaintiff testified that in August, 1920, her husband and herself resided in the upstairs of a house, No. 104 Jarrott street in Florence, and that her son, Clyde and his family resided in the downstairs of that house, the plaintiff paying Clyde rent, and Clyde paying the total rent to the owner of the house; that in the month and year mentioned, about 9 a. m. on one Sunday morning, while her husband was absent from home, Messrs. Dorsey, Hewitt, and Sims (employees as police officers of the defendant) and Messrs. Johnson and Bateman (city policemen) were in the Jarrott street house, and inquired if the witness occupied these rooms, and she responded in the affirmative; that the men said they were going to search the rooms, but showed no search warrant, and did not ask her permission. The men named went into a small room where she kept her trunks, and took everything out of the trunks, and carried off with them many articles of clothing, blankets, a revolver, and other articles, all of which belonged either to her husband, her son Joe, or herself, of the value of $200; and no one of the articles taken was in the possession of her son Clyde Warr.
The plaintiff testified as to ownership of some of the articles taken from the rooms occupied by him, the value thereof, and demand by him, at some time not stated, on Mr. Hare, superintendent of the defendant company, for the return of the articles. He said that Mr. Hare told him that he did not know anything about the matter, and referred him to Mr. Dorsey, the captain of the railroad police: but the plaintiff declined to see Mr. Dorsey. Plaintiff's goods were never returned. He also testified that upon the trial of his son, Clyde, in the United States District Court at Charleston on some larceny charge, in connection with goods alleged to have been stolen from the railroad company, Clyde was acquitted.
S.M. Wetmore, Esq., testified that he was a magistrate in the City of Florence in 1920, and heard a case of the State v. Clyde Warr for larceny; that a search warrant against the premises of Clyde Warr was before him at the hearing; that he did not then know where the paper was, but, according to his best recollection, while the paper appeared on its face to be a valid search warrant, he ascertained from testimony before him that it had not been issued in accordance with the law regarding the issue of search warrants.
The defendant produced evidence to show that the search warrant, under which it claimed the search and seizure were made, was lost. It was established also that Mr. E.W. Johnson, the city policeman who had the warrant in his immediate possession at the time of the search, and Chief of Police Brunson, who gave the warrant to Johnson, had both died prior to the trial. All the witnesses for the defendant, and City Policeman Bateman, who testified for the plaintiff, gave testimony that they thought the paper, under which the search was made, was a valid search warrant, and those who saw the paper stated that on its face there was no indication of any irregularity.
J.D. Gilland, Esq., who was city recorder of Florence at the time of the search complained of, did not testify.
City Policeman Bateman testified that on the last Sunday in August, 1920, when he reported at police headquarters for duty, he found there Chief Brunson and Messrs. Hewitt and Sims, railroad police officers, who were talking to Chief Brunson, and that Captain Dorsey came before he left; he did not see Recorder Gilland, and if he had been there that he would have seen him; Chief Brunson told the witness and Policeman Johnson "not to go on our beats right away, he was preparing papers"; the Chief was writing, but stopped his writing to talk to Johnson and witness; the Chief handed Johnson and witness each a search warrant. He could not say Mr. Brunson wrote out the search warrant, but the only person who was doing any writing was Mr. Brunson, and when the Chief got through writing, he handed the two officers the papers.
Mr. Hewitt, a policeman of the railroad company, swore that, upon the direction of Captain Dorsey, he went to the police headquarters of the city, and was around there from 15 to 30 minutes; upon information he gave to Chief Brunson, the Chief issued a search warrant and gave it to Mr. Johnson; that he did not at any time see Recorder Gilland.
Captain Dorsey testified that there had been many robberies of goods from the railroad company, and that from what he had seen himself, and information he had obtained, one Goffard, a switchman of the railroad company, was guilty of some of the thefts; Goffard was arrested and confessed. From information received from Goffard, and other information, it was deemed wise to search the home of Clyde Warr, son of the plaintiff. Warr, at that time, was employed as railroad switch conductor or switch foreman. Witness went with his assistants, Hewitt and Sims, to police headquarters and requested a search warrant from Chief Brunson. At the time the warrant was being prepared, however, Mr. Dorsey was at the jail talking to Goffard. He did not testify whether or not the city recorder was present at any time. On cross examination he stated that he did not himself seize any of the goods in the Clyde Warr house, but that he was present "in a supervising capacity," and "to see that it was well done." He further stated that he carried away "all of the stuff" that he had on a list, which he exhibited to the Court, and which list was introduced in evidence.
The testimony of the officers who took part in the search was to the effect that Policeman Johnson read the warrant to Clyde Warr, and that Clyde stated nothing described in the warrant was in his home, but that he made no objection to the search; and no statement was made to Warr as to the circumstances under which the warrant had been issued.
The charge of Judge Shipp and his remarks in refusing the motion for a directed verdict should be reported.
The evidence of the case, which we have reviewed favorable to the plaintiff, as it is our duty to do in considering the exceptions made, shows without doubt that the presiding Judge was correct in letting the jury pass upon the issues in the cause. The burden of showing that the search was made in compliance with the law rested upon the defendant, if the defendant instigated that search, or took part therein through its duly authorized employees. It was conceded that Captain Dorsey and Messrs. Hewitt and Sims were employees of the defendant. All of these gentlemen admitted that they instigated the issuance of the search warrant. There was sufficient testimony to go to the jury on the question as to whether or not the recorder signed the warrant, or if the chief of police signed it, or filled it in blank after the recorder had signed it in advance.
In the case of the State v. Dupre, 134 S.C. 268, 131 S.E., 419, the present Chief Justice, speaking for this Court, used this language: "There should be a strict compliance with the law before a Magistrate should issue a warrant to search a person's house. Rich, poor, and humble are equal in law. The poorest and humblest are entitled under law to equal protection."
The judgment of this Court is that the judgment below be, and the same is hereby, affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, STABLER and CARTER concur.