Citation Numbers: 39 Tenn. 398
Judges: Wright
Filed Date: 4/15/1859
Status: Precedential
Modified Date: 7/30/2022
delivered the opinion of the Court.
This is an action of trespass, vi et armis for killing a mare, alleged to he the property of the plaintiff.
On the other hand, there is proof tending to establish that this mare did not belong to the plaintiff, but to Mrs. Fowler.
She Ayas a witness for defendant, and proved that she and plaintiff were brother and sister, and lived together — their father living with them — until her marriage, in April, 1855, Ayhen she went away, and desired to take the mare with her, but the plaintiff would not permit her to do so. And it is to be inferred from the record that she left the mare in possession of the plaintiff, and never aftenvards exercised any further acts of ownership over her. The proof discloses none. It is further to .be inferred, from the evidence, that the plaintiff retained the possession and control' of this mare until she Avas killed.
Upon these facts, the defendant requested the Court to charge the jury, that if the plaintiff was not the OAvner of the mare, to enable him to recover, he mus^ shoAY the actual possession of her, which he could no^ do if she Avere running at large in the Avoods, and that less than three years adverse possession Ayould not give him a title as against Mrs. Fowler; and that even if he had the actual possession, .and the right of property Avas not in him, or Ayas in Mrs. Fowler, then he could only recover nominal damages, or not more Than the damage done him by defeating his possession, and could not recover the full value of the mare.
The jury, under these instructions, rendered a verdict in favor of the plaintiff for ' the full value of the mare, and the defendant has appealed in error to this Court.
"We think the instructions to the jury were proper, and that the Circuit Judge did right in pronouncing judgment upon the verdict.
It is well-settled that an actual and exclusive possession by the plaintiff, even though it be by ivrong, is. sufficient to support this action against a mere stranger or wrong-doer, who has neither title to the possession in himself, nor authority from the legal owner. 2 Greenl. Ev., § 618. Therefore, if we were to canclude that
As to the measure of damages, the reason given why a party having possession should maintain trespass is, that he may have sustained injury by being deprived of the goods; nor should his claim to damages be construed strictly. Ordinarily, he is either the owner, or answerable over to the owner; and, in either ease, he is entitled not only to damages for the taking, but also for the value of the goods. Squire v. Hallenbeck, 9 Pick., 551. This is the general rule. A defendant has been allowed to prove,' in mitigation of damages, that the goods did not belong to the plaintiff, and that they have gone to the use of the true owner, either by being restored to him in specie, "or taken upon legal process, in payment of his debts; for, in such case, the plaintiff is not answerable over. 9 Pick., 551; Sedgwick on the Measure of Damages, 548.
But Mr. Sedgwick thinks the principle of these decisions has been carried quite far enough, and that it is of importance to draw the line between good and bad faith; Where the party acts with pure motives, and endeavors, as soon as possible to repair his mistake, it may, says he, be very proper to construe his conduct favorably; but it will not do to permit acts of wilfu
Without stopping to consider of the validity of this distinction,' it is enough for' our purpose, that here the defendant is a mere wrong-doer, having no sort of claim upon the mare, and that he wantonly destroyed her; and that the plaintiff is either the owner, or had such possession as made him answerable over to the true owner.
In such a case, we have been unable to find any authority in support of the argument that the plaintiff shall not have full damages.
Judgment affirmed.