Devaughn v. Heath , 37 Ala. 595 ( 1861 )

STONE, J.

Thesdiarge asked by the defendants in the court .below, and refused by the court, assumes that, t® justify the jury in awarding vindictive damages, in an action of trespass guare clausum -frcgit, the defendant must have entered the land maliciously., in a rude, aggravating,, or insulting manner. These conjoint words evidently-erected too strict a standard of liability. Trespasses might be so wantonly or recklessly committed, as to justify the imposition of 'vindictive ..damages, without any evidence of actual malice towards the owner'of the property trespassed' upon. T-he word aggravating was probably employed as" the synonym of offensive, or insulting, According to it' this meaning, cases may be imagined, which would call for exemplary damages, when the act complained, of. was-neither tumultuous, grossly abusive, contemptuous, nor strictly insulting. It has been ruled that] “in cases attended with circumstances of aggravation, the jury may give exemplary damages:”' — Mitchell v. Billingsley, 17 Ala. 394; Parker v. Mise, 27 Ala. 483. When the circumstances of the trespass are rude, -.or insulting, malice may be inferred froraothem. So, malice or ill-will may be found to exist, when 'there are no accompanying acts oí rudeness or insult. The charge was properly refused. — 2 Greenl. Ev. § 253, and note.

[2.] The charge given asserts, that Mrs. Heath had" the'’ Ibgal right to give to Ralph,- the slave of Mr. Devaughn, three or four pairs of- old pantaloons, without the knowledge or consent of the latter. We have looked into this question with much care, and cannot find that the circuit; court erred, in giving this -charge. The articles are harm-less in their, character, and, if given, could not -possibly-have injured Mi. -Devaughn». We have no statute, which forbids the giving of articles like these to-slaves; The substance of the charge was, that Mrs. Heath had the right to abandon the ownership and possession of the- property to the slave. When the gift was perfected by delivery, the articles became the property of Mr. Devaughn, The-slave’s master. In a leading case on; this subject,' (Fable v. Brown, 2. Hill’s Ch. 397,),the court said, “If one having-good title to personal property, should transfer it into the possession-of a slave, this ¡transfer would not be void ; the title would-be ©hanged, but the title and possession must be referred to the master.” — See, also, Brandon v. Huntsville Bank, 1 Stew. 341; Trotter v. Blocker, 6 Porter, 291 ; Leech v. Cooley, 6 Sm. & M. 93 ; Cobb on Slavery, § 262 ; Williams v. Ash, 1 How. U. S. 13.

The judgment of the circuit court is affirmed.