Shores v. Brooks , 81 Ga. 468 ( 1888 )

Bleckley, Chief Justice.

1. The evidence indicates that the contending parties were of different colors. The case presents the race problem in a mild form, winch problem, in all its forms, can be solved by the golden rule, “ho unto others as you would that they should do unto you.” The landlord broke open his tenant’s house, and took therefrom 8,000 pounds of cotton in the seed. This was done in the month of October; and the excuse for it was that the tenant had not paid the charges to which the cotton was subject, and would not sell the cotton nor carry it to market as soon as the landlord thought it desirable. If the cotton was subject (and the tenant did not deny this) to the charges upon it, the landlord had his remedy by law, and had no right to act as his own sheriff in making the seizure. The end which he had ih view was not improper, but he was bound to the observance of proper means, as well as a regard to a proper end. "Why should he have violated the law to do right, when he could equally as well have observed the law and done right? ¥e cannot doubt that by breaking open the locked out-house to get possession of the cotton, he committed a trespass for which punitive damages might be awarded. And that he acted fairly in selling the cotton and applying the proceeds to the debt for supplies, would be no excuse for the outrage which he committed by illegally and forcibly obtaining possession of it.

2. The tenant sold to the landlord certain property, and locked it up in one of the out-houses of which he was entitled to the use. The landlord, finding that the tenant had put on his lock, added another and let it remain several days. Then, (we may suppose) taking off his own, he violently broke open the house and took therefrom the property which he had purchased. "We cannot discover that in all this time, he had demanded possession of the subject-matter of his purchase, and no reason appears why he should have used the violence that he did to obtain possession. AVe think that his conduct in this transaction was also the subject-matter of an award for punitive damages.

3. The landlord proposed to show by evidence that, in breaking open the house which contained the goods he had purchased, he acted under the advice of counsel ; but he did not offer to prove that in obtaining that advice, he had submitted to counsel the real facts of the case, or such as were material to the question upon which counsel was consulted. The code, §3066, declares, that “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, either to deter the wrong-doer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff.” This being a case in which exemplary damages might be awarded, we have no doubt that in mitigation of those damages, the advice of counsel was admissible. 1 Suth. Damages, p. 747; Cochran vs. Tuttle, 75 Ill. 361. Compare Jasper vs. Purnell, 67 Ill. 358. AVherever intention is involved as an element of aggravation, advice of counsel is pertinent, although not receivable as matter of justification. Code, §410. Advice of counsel to withdraw claim to avoid damages: Perkins vs. Attaway, 14 Ga. 27(4). Motive for entering an appeal: Gilmore vs. Wright, 20 Ga. 199; Hartridge vs. McDaniel, Ibid. 398. Excuse by sheriff on rule: Green vs. Jones, 39 Ga. 521; Harrell vs. Feagin, 59 Ga. 821. As to suing out distress warrant: Dye vs. Denham, 54 Ga. 224. Malicious prosecution: Fox vs. Davis, 55 Ga. 299; Ventress vs. Rosser, 73 Ga. 535. Suing out attachment maliciously and without probable cause: McLaren vs. Birdsong, 24 Ga. 271. Contra as to fraudulent conveyance: Smith vs. Wellborn, 75 Ga. 800(5).

The offer to prove advice, to be available, should embrace an offer to show that the advice sought and given was based on the actual case. 1 Hilliard Torts, 437, 438.

Judgment affirmed.