
    No. 512
    KMIECIK v. KORYTA et
    No. 19124.
    Supreme Court
    On motion to certify. Docketed
    May 8, 1925;
    3 Abs. 313,
    1235. VERDICT—If error is made in open, ing statement to jury, does it stand, as corrected When' Court recommends and- there is reading of petition to jury? Is directed verdict proper?
    211. CAUSE OF ACTION—Can action for search be predicated, on trespass when nothing is found thereby, whether or not it is in legal form?
   Tekla Kmiecik brought her action in- the Cuyahoga Common' P leas • against . -Anthony Koryta and'Emil Milkowski, members of the Cleveland Police Department and their re7 spective sureties on the official bonds of the officers. The action- was -in tort, for damages sustained by Kmiecik as a result of their unlawful search of her bona fide residence. It was alleged that the policemen maliciously and wickedly intending, to injure the good name of the plaintiff, did, without reasonable: .or probable cause, procure to be issued a warrant based on an affidavit sworn to by Milkow.-ski, authorizing the search- of said residence. As a result' of the search it was claimed, Kmie-cik suffered a shock of her nervous system; became distressed in mind-, and suffered great mental and physical pain; for which $500 was asked-as damage. - ..... - -

Counsel for Kmiecik, commenced on the opening statement to the jury and, when an objection was made to a statement, wás requested by the court „to read' the petition to' the jurif, which request was complied with by said eoüfi'-sel. .At 'the conclusion thereof, a'motion ;to direct a verdict, was sustained on the ground that the petition was , insufficient, and' .that there was mo conspiracy under the state-of facts'. alleged, .although an amendment was made to the opening statement, ''

' Error was prosecuted' 'and' the Court/' of- Appeals,' Hauck, Shields, and- Patterson, 5th„Dist., sitting, affirmed the ■ judgment of the lower court. ■

Kmiecik,-brings the case to the Supreme Court' on; motion to: certify and in support thereof'Contends: '•■ • - ■ '

If counsel for. Kmiecik, in the triál of the causé failed .‘to state á, casé in his opening ' stateníeñt to the jury, the error, if any, wag corrected by the court itself in its • recommendation to said counsel to read the amended petition to, the jury and by compliance' by counsel "with said recommendation.'

It is claimed that .counsel , for Koryta stressed the point that the police officers acted with- . in scope. of their duties and were therefore not liable. It is contended that the action piay be maintained, not only where' the affidavit is perfectly valid, but even when it is an order, Or judgment of the court having jurisdiction,providing the proceedings, wereinstituted'-and the order procured by malicious motives. Brickman v. Droelsbaugh, 97 OS. 181.

Attorneys-F. J. KMiecik and C. V. Hull, for Kmeicik; Geo. W. Perry for Koryta, et; all of Cleveland.

It is also claimed that a person siung out a search warrant does so at his own perol and is liable in an action in trespass for damages if goods are not found, he is a trespasser and whether warrant is in legal form or not.  