Mattingly v. Houston, 52 So. 78

Mattingly v. Houston

52 So. 78 | Ala. | 1909

SAYRE, J.

Waldrop," as agent for the owner, had sued out an attachment against Charles M. Houston for rent in arrears. The attachment was levied by Mattingly and Sellers, who were constable and deputy consta-ble, on household goods in the house occupied as a residence by Houston and his wife, the appellee. A major part of the goods had been purchased by Houston from the Martin Furniture Company on the installment plan with title reserved in the company. Appellee contended that the goods bought from the furniture company had' been given to her by her husband. After a few days the' rights of the furniture company and Mrs. Houston were' recognized, and such of the property as belonged to - them respectively was restored to their possession; but in the handling incident to the levy some articles be-longing to Mrs. Houston had been damaged or destroyed. In the suit which followed judgment was recovered’ by Mrs. Houston on a complaint containing counts in' trespass and trover. From that judgment this appeal’ is prosecuted.

There was no error in the rulings of the court on questions raised by the pleading. Two counts show a' single trespass, one a single conversion alleged to have" been the act of the defendants. The only reasonable interpretation of the complaint is that the wrong complained of is charged as the joint act of the defendants named.

*172The second count charges an offense against “the following goods and chattels, to wit, the goods and chat-tie described in the first count of the complaint.” The third describes them as follows, to wit, “the same property as is described in the first count of this complaint.” The method of adopting the averments of preceding counts has been tolerated by this court, but lias never been approved as an admirable habit in pleading. Specific reference from one count to another is a. different thing. It is not only permissible according to ihe precedents, huí often proper, in order to avoid unnecessary repetition and prolixity, that one count should refer specifically to another. — Robinson v. Drummond. 24 Ala. 174; Mardis v. Sheckleford, 6 Ala. 433. There is no vir-. tue in forms of words. The language used in these counts imports more than a mere incidental reference to the property described in the first count. It informed the defendant of the purpose of the pleader to proceed in the second and third counts for a wrong to the same property as that described with detail in the first count, and so accomplished the purpose of all pleading. Appellant’s insistence just here considered was reiterated in some of the charges requested in the court below, but to no better effect.

Demurrer to the second plea was sustained. The substance of the plea is that the defendant took the plaintiff’s goods in the way of levying upon them while acting under authority of the writ of attachment and had at the time no knowledge of plaintiff’s ownership of the property which was in the possession of the plaiutiff’s husband, the defendant in attachment, and that the property levied upon was delivered to plaintiff as soon as she made known her claim to it. When a sheriff or constable, seeking to levy a valid writ of attachment, finds personal property in the possession of the defend*173ant in attachment, he is entitled, in the absence of knowledge or notice to the contrary, to presume that the person in possession is the owner of the property, and it is his duty to levy upon it accordingly. — Murphree on Sheriffs, § 965. The plea fails to deny that defendants had Lotice of plaintiff’s claim of ownership in the property levied on, and for that reason falls short of stating a valid defense. It is doubtful, however, whether the demurrer takes this point.

Charges 12, 13, 14, 15, and 16, refused to the defendants, asserted that there could be no recovery on account of plaintiff’s annoya.nce, suffering, or mental anguish. The proposition of these charges, so far as it referred to the count in trover, was correctly stated. The measure of recovery under that count was the value of the property at the time of the conversion or at any time subsequent thereto, with interest, — Sharpe v. Barney, 114 Ala. 361, 21 South. 490; Curry v. Wilson, 48 Ala. 638. But in trespass damages take a wider range. A wrong, the result of mere negligence, is righted by awarding compensation for the proximately resulting pecuniary loss. In 1 Sutherland on Damages, § 95, it is stated on the authority of White v. Dresser, 135 Mass. 150, 46 Am. Rep. 454, that injured feelings are not to be regarded in awarding damages for wrongs done to property through gross carelessness (which means no more than negligence) ; no act or word of insult or contumely or any intentional violation of plaintiff’s right being shown. For intentional wrong and such entire lack of care as raises the presumption of a conscious indifference to consequences punitive damages are awarded, of course. There was evidence which, if it found credence with the jury, justified the jury in imposing damages of this character. The precise question, however, is whether annoyance, suffering, or mental an*174guish — -which terras it seems were used as being practically synonymous — caused by malicious wrong, as alleged in the second count to have been the case, are to be compensated for as actual damages, or whether the assessment of damages on that account is to be left to the sound discretion of the jury in assessing punitory damages. It was said, in City National Bank v. Jeffries, 73 Ala. 183, that it could not be denied that one who has been wrongfully and vexatiously attached might recover for his wounded feelings. We do not doubt that in assessing damages for a trespass to property mental suffering',.established in the proof as the proximate and natural consequence of the trespass committed with circumstances of insult or contumely, is to be taken into account and compensated as a matter of right. There was therefore no error in refusing these charges to the defendant.

The proposition of charge 7 refused to the defendant has been more than once denied by this court. — Alabama G. S. R. R. Co. v. Sellers, 93 Ala. 9, 9 South. 375, 30 Am. St. Rep. 17; Parker v. Mise, 27 Ala. 480, 62 Am. Dec. 776. We are not aware of any occasion calling for a review of the cases in which it has been so ruled.

Charge 10 asserts that if the jury should find from •the evidence that the property in question was in the possession of the plaintiff’s husband, and he instructed the constable to go and take charge of it, then they should find for the defendants. In argument it is said ■that the possession of the husband, his direction to take the property, and its subsequent return to the wife on discovery that it belonged to her, relieved the defend-ants of any liability as for wrong done. But as to a part of the property the possession shown in evidence was •.not the mere possession spoken of in the charge. It was •materially qualified by attendant circumstances. The *175charge pretermits all consideration of those circumstances which informed the defendants, in the exercise of reasonable prudence, that the husband’s possession was specious only. Possession without more, such possession as was referred to in the charge, is evidence of ownership ; but it is prima facie only. Where husband and wife live together, and his possession is worked ont by reference to his general dominance of the household, as was the case here, the defendants when making the levy conld not justly or becomingly extend his possession to the wife’s personal apparel. The levy in part was upon the wife’s apparel. Further, there was evidence tending —how strongly we will not say — to show the wife’s beneficial ownership of the furniture purchased from the furniture company subject to the company’s title retained for security and that the husband ordered it to be restored to the furniture company.- The husband could not dispose of the wife’s property without her consent in either of the ways here supposed to have been shown. The charge did not fairly present the phase of the case with which it dealt, and wag properly refused.

Charge 18, upon which the appellants insist, states the rule for the admeasurement of damages in trespass de bonis asportatis as it was stated in Fields v. Williams, 91 Ala. 502, 8 South. 808, except that it omits all mention of circumstances of aggravation, which is to say the charge assumes that there was no evidence to warrant the assessment of damages for injured feelings or in the way of smart money. As the case must be tried again, we prefer not to go into details to show that there was such evidence. Suffice it to say there was evidence which required the submission of these questions to the jury, and there was no error in refusing the charge..

*176Plaintiff, being examined as a witness, was asked: “State whether or not you suffered any by reason of the defendants taking the property involved in this ease.” After objection overruled and exception reserved, she answered: “Certainly, I suffered; I was nearly worried to death about it.” This was error. The matter sought to be proved is not capable of direct proof under the rule which has long prevailed in this state. The admission of testimony very nearly in identical language was held to be reversible error in City National Bank v. Jeffries, supra. The complaint, the course of the examination, and the question itself clearly indicated plaintiff’s purpose to establish by the question a case of mental suffering. This could not be done in the manner attempted. We feel safe in the conclusion that the objectionable purpose of the question was entirely clear, that the evidence elicited by it was not free of injurious consequence to the case of defendants, that the objection should have been sustained in the form' in which it was stated, and that for the error here shown the judgment ought to be reversed on the appeal of all the defendants.

Reversed and remanded.

Dowdell, C. J., and Anderson and Evans, JJ., concur.