Bartlett v. Chaviers , 14 Ala. App. 279 ( 1915 )

PELHAM, P. J.

Suit was brought in the court below by the appellee against the appellant, seeking damages for an alleged trespass by him in the wrongful taking of a mule from the possession of the appellee. There was verdict and judgment for the plaintiff, from which this appeal is prosecuted.

(1) All three counts of the complaint aver a wrongful taking of the mule by the defendant from the possession of the plaintiff, and-the first and third counts allege the ownership of the mule to be in the plaintiff. The second count claims damages for the wrongful taking of the animal by the defendant from the possession of the plaintiff, accomplished by acts of violence and circumstances of aggravation. The gist of an action of trespass is injury done to the possession, and the allegation of actual possession in the plaintiff, and the wrongful taking by the defendant, accompanied by force and acts of violence, was sufficient.—Cook, et al. v. Thornton, 109 Ala. 526, 20 South. 14; Dunlap v. Steele & Vandergrift, 80 Ala. 424.

(2) Nor are the grounds of demurrer, directed at counts 2 and 3, as stating conclusions rather than the facts descriptive of the forceful and unlawful trespass, well taken. The allegations of these counts described the manner of taking and so averred, the specific acts of violence accompanying the alleged trespass, that issue of fact could be taken and proof adduced in support thereof or in opposition thereto.

(3) It appears from the facts that the defendant had turned the mule over to the plaintiff in a trade or “swap.” The evidence is without conflict that the plaintiff had rightfully come into possession of the mule at the hands of the defendant. It was the defendant’s contention, as divulged by the evidence set out in the bill of exceptions, that under the terms of the trade, the animal (a mare) he had received in exchange for the mule not coming up to the representations made by the plaintiff with respect to her qualities, he had the right to “rue back” and take- the mule from the defendant’s possession. Upon the point as to the' right to declare the trade off and retake the mule, the evidence was in sharp conflict, but, even granting that the defendant was the true owner of the mule, and that the plaintiff wrongfully withheld the possession from him, the defendant would not be permitted in the law to take the mule from the possession of the plaintiff, to whom it had been given by the defendant, with force, or by putting the plaintiff in fear of his life by threatening him with a drawn pistol, as the evidence introduced in behalf of the plaintiff tended to show. Such a taking, accompanied by acts of force or violence and circumstances of aggravation, even by the true owner from one who wrongfully withholds the possession from him, would constitute ah unwarranted and unlawful trespass.—Brown v. Floyd, 163 Ala. 317, 319, 50 South. 995; Herndon v. Barlett, 4 Port. 481; Folmar v. Copeland, 57 Ala. 588; Finch v. Alston, 2 Stew. & P. 83, 23 Am. Dec. 299.

(4) The evidence was in conflict as to the circumstances attending the taking by the defendant. That introduced by the defendant tended to show that while defendant had a drawn pistol, he made no threats, and was permitted to take the animal with but slight objection upon the part of the plaintiff. The testimony of the plaintiff and witnesses in his behalf was to the effect .that the defendant forcibly and by intimidation took possession of the mule from the plaintiff by threatening him with a drawn pistol, and cursing and abusing him and chasing him several times around the mule and another animal that the plaintiff was engaged at the time in using as a plow team, and that the defendant then cut the mule loose from the plow to which the team was hitched, by cutting part o.f the gear or harness, and forcibly by intimidating plaintiff took the mule away with him, against the protest of the plaintiff. The question of whether the taking was by force, accompanied by acts of violence and circumstances of aggravation, was clearly for the jury; and if the jury ascertained that the taking was so characterized, then they were authorized to award vindictive or exemplary damages.—Brown v. Floyd, supra; Leinkauf v. Morris, 66 Ala. 406; Devaughn v. Heath, 37 Ala. 595; Parker v. Misc. 27 Ala. 480, 62 Am. Dec. 776; Roberts v. Heim, 27 Ala. 678.

It follows from what has been said that we are of the opinion that the court correctly stated the law on the issues formed, in that part of the oral charge to which an exception was reserved, and was not in error in refusing the various charges requested by the defendant, or in giving the charges at the instance of the plaintiff that are made the basis of the assignments of error.

Affirmed.