Interstate L. Co. v. Duke

McCLELLAN, J.

— -Appellee instituted this action against the appellant. The substance of the wrong complained of was the taking and appropriation of, and entry upon, plaintiff’s properties by the defendant’s agents or servants. This action was sought to be justified under a mortgage executed by plaintiff and- assigned to defendant; its contention being predicated of the alleged abandonment by plaintiff of the properties in question in consequence of his becoming a fugitive from justice.

The court erred in overruling the demurrer to count 3 as amended. It undertook, improperly, to join in one count, trespass and case. — City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389; Sou. Ry. Co. v. McIntyre, 152 Ala. 223, 44 South. 624. In the record proper a demurrer appears as addressed to amended count 3 and the judgment entry shows a ruling thereon adverse to demurrant (appellant). The fact that the judgment entry bears at its head the date “August 28, 1911,” whereas the demurrer was filed the next calendar day, does not necessarily' require the conclusion that the demurrer was filed after verdict or judgment. Prom the whole record proper it must be concluded that August 28, 1911, was the day and date on which the trial Avas begun, and that it Avas not completed to verdict before the amendment of count 3 was seasonably effected and the demurrer thereto presented and disposed of by the court.

The further amendment of the complaint by adding distinct counts, from amended count, to Avhich the indicated demurrer Avas overruled, did not oblige the demurrant, in order to save for review the questions now under view, to reinterpose his demurrer to amended count 3. — B. R. L. & P. Co. v. Fox, 174 Ala. 657, 56 South. 1013.

If plea 5 should be interpreted as intending to assert as a bar to the action the alleged fact that plaintiff’s agent and custodian of the property in question voluntarily surrendered the possession to the agent or servants of defendant, the plea was faulty, as the demurrer pointed out, in omitting to aver the authority of plaintiff’s agent to so dispose of that possession, or that such'alleged action on his (agent’s) part in so disposing of the possession was later ratified by plaintiff after being fully informed in the premises. If such was not the general purpose of the pleader in this plea (5), its substance could not have any legal effect to bar a recovery, though the admissible facts asserted therein may have been proper subjects for the jury’s consideration in determining the measure of the recovery, if they found plaintiff was entitled to recover.

The existence of a contract to render a service for another, which service requires the employment of property in its performance, can never justify the unauthorized appropriation or injury, by him to be served under the contract, of the property of him who has engaged to render that service.

Under the issues tendered by plea 3 as amended, and upon which there was joinder in issue, it was error to deny defendant the opportunity to show, if it could, particularly by questions propounded to plaintiff on his examination, that plaintiff was a fugitive from justice as the pleas averred.

The defendant sought to adduce evidence tending to show that it in good faith assumed dominion of the oxen and wagons of plaintiff, and so appropriated them to the carrying out of plaintiff’s existing logging contract with it, carefully caring for his property, and keeping a correct account in the premises.

The court entertained the opinion, and enforced it in rulings, that this proffered testimony was entirely inadmissible. While such testimony was not to be at all considered as justifying the unauthorized invasion of plaintiff’s rights of property, yet it was pertinent and admissible upon the inquiries, whether exemplary damages should be awarded' plaintiff, and, if so, in what sum. — 13 Ency Ev. pp. 44-46; Boggan v. Bennett, 102 Ala. 400, 14 South. 742; Boling v. Wright, 16 Ala. 664; Burns v. Campbell, 71 Ala. 271. A number of instances of error in this connection occurred on the examination of the witness McCullough.-

Accordingly, also, the defendant was entitled, as bearing upon the measure of the recovery, to have admitted to' the jury a full disclosure of the nature and terms of the logging contract existing between plaintiff and defendant of what, if so, the defendant did in good faith thereunder, and of what, if so, the defendant did in the repair of the wagons thus used by it.

Whether the mortgage under which defendant sought, in amended plea 3, to justify the taking of the property of plaintiff had been satisfied before the assumption of possession by defendant of the property described therein appears to have been, under all the evidence, a question for the jury. If that mortgage was so satisfied, the verbal agreement (if made) by plaintiff that it should continue as an indemnity or security to defendant did not avail to constitute or continue the instrument such a mortgage as may be recognized in a court of law. — Code, § 4288; Barnhill v. Howard, 104 Ala. 412, 16 South. 1; Williams v. Davis, 154 Ala. 422, 45 South. 908; Putnam v. Summerlin, 168 Ala. 390, 53 South. 101.

Nevertheless, testimony tending to- show such a verbal agreement with respect to the instrument’s future effect, even if in fact satisfied before the taking by defendant of the property in question, was admissible as bearing upon the issue involved in the measure of the recovery the jury should approve if they found exemplary damages were due to be awarded. — Boling v. Wright, supra.

Manifestly, the defendant was not entitled to the affirmative charges requested by it except as to count 7, and that because of the failure of the evidence to identify the dAvelling entered and possessed (if so) according to the particular description thereof incorporated in that count. There is no disputing the fact, on the evidence here, that agents or servants of the defendant took possession of chattels belonging to plaintiff. It was at least open to the jury to find that this taking was under authority or by direction of the defendant, and without authorised permission of plaintiff’s agent, Payne, in whose custody he left the chattels. But, if that was not the conclusion to which the jury could give approval, the evidence is conclusive that the act of the defendant’s servants or agents in taking and using the chattels they did take was subsequently ratified by the defendant. — Burns v. Campbell, 71 Ala. 289, 290.

Whether the plaintiff, if found due to recover, was entitled to exemplary damages was a question for the jury. It is not desirable, in view of the retrial to occur, that a discussion of the evidence in this connection should be undertaken.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Sayre and Somerville, JJ. concur.