126 Ga. 58 | Ga. | 1906
1. It is contended that inasmuch as the plaintiff did not allege in his petition, nor testify on the trial, that he was Irumiliated by reason of the assault, it was erroneous for the court, in its charge, to state to the jury that the plaintiff claimed damages by reason of humiliation. Section 3906 of the Civil Code reads: ‘“In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages.” The third paragraph of the petition reads: “The petitioner alleges that the said assault and battery was without cause, and was aggravated both in the act and the intention; .and for said assault and battery petitioner claims punitive dam.ages.” Thus it will be seen that the allegations of the petition followed the language of the code section. They are, therefore, sufficient to support a claim for damages' therein provided for. The code section, continuing, states that these damages may he given, ■“either to deter the wrong-doer from repeating the trespass, .or as compensation for the wounded feelings of the plaintiff.” So far .as the pleadings in this ease are concerned, the jury were at liberty to award these damages for either of the two purposes. This being ■true, the defendant can not be heard to complain that a charge of the court which authorized the jury to give damages for one of ■those purposes was unwarranted by the pleadings. Nor can the ■charge be said to be unwarranted by the evidence in that the plaintiff failed to testify directly that he was humiliated or wounded as .to his feelings. Whether or not he was so injured is a conclusion
2. In regard to the question of trespass to his land, raised by the defendant’s plea of set-off, it is admitted that the tree that was. cut was standing two feet within the boundary line of the defendant’s land, and that the top was cut therefrom. This admission is-sufficiently broad to justify the conclusion that the body of the tree for its entire length was on the defendant’s side of the boundary line. It follows, therefore, that a trespass was committed on the defendant’s property, irrespective of the cutting of the limbs of the tree overhanging the land claimed by the railroad company. It further appears that this trespass was committed in the immediate-presence and at the instigation of the plaintiff. He assumed to have the right to have the tree cut, stood by and saw the cutting in progress, and refused to order any desistance when requested by the officer who arrested him. It was -not a question of the woodman disobeying his order, and cutting at a place not intended. The act of cutting that particular tree in that particular manner was as wilful and designed as the plaintiff could make it. Under these circumstances, he would be responsible for the trespass, and the fact that he was an agent of another would not relieve him of the liability. It was erroneous for the court to instruct the jury to-disregard the defendant’s counter-claim..
3-, The exceptions as to the rulings of the court relating to the rejection of evidence, and to other portions of the court’s charge to-the jury, are not well founded.
Judgment reversed.
