Ewton v. McCracken

WALKER, P. J. —

The court did not err in permitting the complaint to be amended by correcting the Christian name of the plaintiff. — Code, § 5367; Beggs & Son v. Wellman, 82 Ala. 391, 2 South. 877. The claim that by the amendment a different party plaintiff was substituted for the original one is notably without merit, in view of the fact that in the original summons in the case, which, so far as the record indicates, remained unchanged, the name of the plaintiff was stated identically as it was in the complaint as amended.

The record does not present for review any action of the court on the motion of the defendants to exclude the testimony of the plaintiff as to the rental value of the property alleged to have been seized. The bill of exceptions does not show that the court ruled on that motion, or that there was any exception to such a ruling.

The ruling of the court on the objection by the defendants to a question to the plaintiff as to the rental value of the property will not be considered, as that ruling has not been assigned as an error.

In its oral charge the court stated to the jury that “for any intentional loss or lack of care punitive damages may be awarded.” As applicable to the evidence in the case this instruction was not erroneous. There was evidence tending to prove that some of the furniture of the plaintiff which was taken under a writ against her husband was broken, and that some of it she never got back. In the absence of explanation of these wrongs it was permissible to find that they were due to intentional misconduct of the levying officer. If so, punitive damages could be awarded for a trespass, accompanied by such features of intentional injury. — Burns v. Campbell, 71 Ala. 271; 38 Cyc. 1142.

It is urged that the general affirmative charge requested by the defendants should have been given because of a variance between the allegations of the complaint and the evidence offered in support of them. The variance pointed out is that the breach of the constable’s bond sued on which is alleged in the complaint is his act in levying upon and taking away the plaintiff’s personal property under a writ issued on a judgment of a justice of the peace in the case of G. B. Fisher v. “C.” B. McCracken, while the evidence offered was as to a seizure of the plaintiff’s property under a writ issued on such a judgment rendered in the case of G. B. Fisher v. “G.” B. McCracken. We are not of opinion that the variance was a material one. The substance of the wrong charged in the complaint was the levying upon and taking away of the plaintiff’s property under process not against her, but against some one else. The identity of the defedant in the suit in which that process was issued against some one not the plaintiff in this suit was not a fact Avhich was a material or essential feature of the wrong of which the plaintiff claimed. So far as the existence of that wrong was concerned it was immaterial whether the defendant in the suit referred to was “C.” B. McCracken or “G-.” B. McCracken. A writ against a ■defendant described by either of these names was not leviable upon the property of the plaintiff. The conclusion is that the evidence offered was not variant from the allegation in any such essential particular as to require the giving of the general affirmative charge requested by the defendants. — Alabama Great Southern Ry. Co. v. McFarlin, 174 Ala. 637, 56 South. 989; Louisville & N. R. Co. v. Penick, 62 South. 965; Central of Georgia Ry. Co. v. Thomas, 1 Ala. App. 267, 55 South. 443.

The court was justified in refusing to give charge E, requested by the defendants, because, by evidence offered by the defendants themselves, and which was not contradicted, it was shown that the plaintiff had claimed the property referred to before the levy complained of was made.

Charge 3, requested by the defendant, was so expressed as to assert, or at any rate to be understood as asserting, that the jury should find for the defendants if they believed from the evidence that the constable in making the levy believed that he was performing his duty as constable, and that he, the constable, not the jury, believed that he was not actuated by-malice, although he was, but merely by a desire to perform his duty. The charge as framed was confusing, and calcula ted-to lead the jury to an immaterial inquiry as to the belief of the constable as to the presence or absence of malice in his conduct. These faults justified the court in refusing to give it.

The complaint, in claiming damages for the act of the constable in levying upon and taking away the described personal property of the plaintiff, re'sted her claim in part upon alleged conduct involving a withholding of her property. In view of these allegations it is apparent that charge B, requested by the defendants, is a misstatement as to the contents of the complaint. It ■follows that the court was not in error in refusing to give that charge.

What has been said above sufficiently indicates the grounds of the court’s conclusion that none of the remaining assignments of error which have been sought to be supported by argument can be sustained.

We discover no error in the record entitling the appellants to a reversal.

Affirmed.