Stowers Furniture Co. v. Brake

47 So. 89 | Ala. | 1908

DENSON, J.

The complaint as originally filed contained only one count. In it the defendant was described as “Stowers Furniture Company,” without any averment to show whether it was a partnership or a corporation. The court properly allowed the amendment showing that the defendant is a corporation.-Ex parte Nicrosi, 103 Ala. 104, 15 South. 507. Nor did the court err in allowing counts A, B, C, D, and E as amendments to the complaint.

The action, then, is against a corporation; and each count of the complaint alleges trespass vi et armis to the person, and trespass vi et armis and de bonis asportatis, conjunctively. This is permissible in this jurisdiction, when the alleged trespasses are parts of the same transaction. Here they are sufficiently shown to he parts of the same transaction, and the demurrer in this respect was properly overruled. — Henry v. Carleton, 113 Ala. 636, 21 South. 225; Birmingham, etc., Co. v. Lintner, 141 Ala. 420, 38 South. 363, 109 Am. St. Rep. 40; Southern Suspender Co. v. Van Borries, 91 Ala. 507, 8 South. 367; L. & N. R. R. Co. v. Mothershed, 97 Ala. 261, 12 South. 714.

The other grounds of demurrer to the complaint are fully answered by the allegations of the several counts.

The defendant pleaded eight pleas, Nos. 1 and 2 of which being the general issue. Under these pleas of the general issue, all matters set up in the other pleas (except, perhaps, that contained in pleas 3 and 8), might have been proved; consequently the court cannot be put in error for sustaining demurrers to said pleas.

As to the sufficiency of plea 3, it is argued that the owner of personal property has the right to take peaceable possession wherever he may find it, if he is entitled to the immediate possession. This is true, and the principle may be extended to a vendor in a conditional sale contract, after breach of the condition; but the talcing must, indeed, be a peaceable one. Here the complaint avers the commission of an assault and battery as the accompaniment of the taking; and, construing plea 3 most strongly against the defendant, it is apparent that it does not clearly shoAV that a breach of the peace Avas not committed. The demurrer takes the point, and the court properly sustained it. — Fuller’s Case, 115 Ala. 66, 22 South. 491.

In respect to plea 8 it avíII be observed that it fails to negative or traverse the averments of the complaint to the effect that an assault and battery was committed by defendant’s servants while acting Avithin the scope of their employment. For this reason, as well as for others, the demurrer to this plea was Avell sustained.

We come now to consider questions presented l).y the bill of exceptions. It is the subject of express decision by this court that declarations of a sick person, relative to the symptoms and nature of the disease or injury under which he is laboring, whether made to a physician or other person, are admissible as original evidence. “Such declarations are admissible as explanatory of the present condition of the declarant, upon the principle of res gestae, as well as upon the necessity of the case.”— Rowland v. Walker, 18 Ala. 749; Eckles & Brown v. Bates, 26 Ala. 655, 659; Phillips v. Kelly, 29 Ala. 628; Birmingham, etc., Co. v. Hale, 90 Ala. 8, 8 South. 142, 24 Am. St. Rep. 748; Montgomery St. Ry. Co. v. Shanks, 139 Ala. 489, 501, 37 South. 166; Birmingham Ry., Light & Power Co. v. Rutledge, 142 Ala. 195, 202, 39 South. 338; Kansas City, & B. Ry. Co. v. Matthews, 142 Ala. 298, 311, 39 South. 207.

According to this principle, rulings of the court challenged by the ninth, tenth, and eleventh grounds in the assignment of errors, even if the questions were properly presented, could not be sustained. We note that no exception was reserved to the rulings of the court in respect to the matters embraced in the ninth and tenth assignments, while, in respect to the eleventh assignment, the former part of the question falls within the principle above alluded to; but the answer of the witness was not responsive, and the defendant should have adopted a motion to exclude as the remedy against the answer.

In respect to the twelfth ground in the assignment of errors, it is sufficient to say that no exception was reserved to the ruling of the court.

It does not appear from the bill of exceptions that the question to the witness Stancil, “Then what was said, if anything?” was objected to. The answer thereto was responsive, and the motion to exclude it was properly overruled. Therefore the thirteenth ground in the assign merit, of errors cannot be sustained. — Southern Ry. Co. v. Leard, 146 Ala. 349, 39 South. 449, and cases there cited.

Furthermore, all that was done and said by the parties who seized the property was competent as parts of the res gestae; and within this principle falls also the matter embraced in the fourteenth, sixteenth, and twentieth grounds in the assignment of errors.

The fifteenth, seventeenth, and nineteenth grounds in the assignment cannot be sustained, for the simple reason that the questions objected to were not answered.

The eighteenth ground in the assignment of errors embraces two rulings of the court: First, the overruling of defendant’s objection to a question to witness Hockholzer; and, second, the refusal of the court to exclude an answer to the question. Assigned in this manner, both rulings must constitute reversible error, or the assignment cannot be sustained. It is clear that the first ruling, even if erroneous, cannot avail defendant anything. It was not excepted to.

Upon the same principle the twenty-first ground in the assignment is not sustainable. It purports to embrace two rulings, one of which was not made by the court, and there was no motion to exclude.

The evidence shows that the acts complained of occurred late in the afternoon. It was competent, against the general objection to the question made by the defendant, to prove, by the husband of plaintiff, the condi. tion of the house on his return that night, and the twenty-second ground in the assignment cannot be sustained.

The twenty-third ground of error is not insisted upon in brief of counsel.

There was no objection to the question. “What became of the vases and ornaments?” and no stated ground for the motion to exclude the answer. Therefore the twenty-fourth ground in the assignment of errors is without merit. — McCalman’s Case, 96 Ala. 98, 11 South. 408; Billingsley’s Case, 96 Ala. 126, 11 South. 409; Washington’s Case, 106 Ala. 58, 17 South. 546; Liner’s Case, 124 Ala. 1, 27 South. 438.

The twenty-fifth ground in the assignment challenges the ruling of the court overruling objection to the question to plaintiff calling for testimony of the value of a necklace which the evidence tended to show was taken. No ground for the objection was assigned, and the court was under no duty to cast about for a ground for the objection.-Wallis v. Rhea, 10 Ala. 453; Eason v. Isbell, 42 Ala. 456; Riley’s Case, 88 Ala. 193, 7 South. 149. The ground of error cannot be sustained.

There are two grounds of error numbered 26. The witness who was being examined showed sufficient knowledge of the value of the goods to warrant the admission of her testimony on -the question of value, and the first ground of error assigned by this number cannot he sustained. The second of the grounds numbered 26 cannot be sustained, because it is plain that defendant made no objection to questions calling for the evidence which is the subject of the motion to exclude, and the court was under no duty to grant the motion. — Liner’s Case, 124 Ala. 1, 27 South. 438.

The same observations are applicable to ground 27 in the assignment. Even if the court erred in admitting the testimony of plaintiff in respect to a conversation over the phone. ( Western Union Tel. Co. v. Rowell, 153 Ala. 295, 45 South. 73), the subsequent exclusion of the evidence by the court rendered the admission of the testimony harmless.

The twenty-ninth ground of error embraces two rulings of the court, to one of which no exception was reserved. What has been said in respect to the eighteenth ground in the assignment, therefore, is applicable to and condemnatory of this ground.

The question propounded to the witness Strickland, “What did the constable tell you, that it had or had not been done?” is hardly sufficiently intelligible to justify putting the court in error for sustaining an objection thereto. Besides, the question is a leading one. Consequently the thirtieth ground in the assignment of errors is not well taken.

Tké thirty-first ground in the assignment is without merit. It is conceded in this case that the writ under which the officers seized the goods was void, and afforded them no protection, even if the goods had been taken in a peaceable manner; but, if it had been valid, it would not have protected them against the consequences of conduct which the evidence for the plaintiff tends to show they were guilty of in this instance. They were liable for a trespass, and, it may be, for heavy damages The question is, should the defendant be held liable? The defendant’s general manager, upon being notified by the officer that he had gained entrance to the house, and that, if he (the manager) would send a wagon over there, he could get the furniture, sent two of defendant’s servants with a wagon; and the proof shows that these servants went into the- house, took possession of the furniture, put it on the wagon, and carried it to the defendant’s store, where it was retained even after the general manager was notified, the same night in which the goods were received, of the bad manner or conduct which characterized the parties in the seizure of the goods, and after demand was made by plaintiff for their return. On this phase of the evidence, the liability of the defendant was at least a question for the-jury to determine, on the theory of ratification, if upon no other; and the charge numbered 17 was properly refused to the defendant. — Burns v. Campbell, 71 Ala. 273, 290; Murray v. Mace, 41 Neb. 601, 59 N. W. 387; 43 Am. St Rep. 664.

Furthermore, the process in the hands of Reynolds was void on its face, and the evidence tended to show that it was at the instance of the defendant the property was seized thereunder. In this state of the case the defendant was a trespasser in no less degree than was the constable. — Duckworth v. Johnson, 7 Ala. 578; Stetson v. Goldsmith, 30 Ala. 603; Oates v. Bullock, 136 Ala. 537, 33 South. 835, 96 St. Rep. 38.

There can be no doubt that the bill of exceptions shows that the charges of the defendant were requested in' bulk; and, even one of them being bad, the court cannot be put in error for refusing all, nor for refusing to grant a new trial on the ground of error in their refusal. (Verberg’s Case, 137 Ala. 73, 78, 34 South. 848, 97 Am. St. Rep. 17; Southern Ry. Co. v. Douglass, 144 Ala. 351, 39 south. 268) ; and, this being true, -the grounds of the motion for a new trial, based on the refusal of the written charges, were not well assigned.

The motion for a new trial contains, amongst others, two grounds (37 and 38) purporting to be based upon parts of the oral charge of the count. These grounds do not explicitly point out such portions of the charge, so as to bring them before us for review. However, looking to the oral charge, which is set out in full, we find the portions which seem more clearly to support the grounds set out on page 54 of the record; and these portions, at least abstractly considered, are without fault. Moreover, no exceptions thereto Avere reserved.

The only question for consideration is Avhether or not the verdict for $1,500 is excessive. There can be no doubt, on plaintiff’s theory of the case (and such theory finds support in the evidence), that Reynolds and Denegre, the persons who seized the goods, if they had been sued, Avould have been liable in exemplary damages. There is no plea of justification, and it is conceded that the writ under which the constable professed to act was void. The defendant was the canse of this -void writ being placed in the hands of the officer for execution. Moreover, there is one phase of the evidence which warrants the inference of ratification of the seizure of the goods; and by this- we mean that there is a tendency in the evidence to show that defendant received and retained the goods with knowledge of the circumstances which attended their seizure. In this view of the case, it cannot be said that the doctrine of exemplary damages is not applicable. — Lee v. Lord, 76 Wis, 582, 45 South. 601; Lienkauf & Strauss v. Morris, 66 Ala 406; Street v. Sinclair, 71 Ala. 110. This being true, if was in the discretion of the jury to award exemplary damages, and it is evident that they so did. We cannot say that the verdict is excessive.

No reversible error being shown by the record, the judgment will be affirmed.

Affirmed.

Tyson, C. J., and Simpson and Anderson, JJ., concur.