Garden v. Houston Bros.

50 So. 1030, 163 Ala. 300, 1909 Ala. LEXIS 518

• Court: Supreme Court of Alabama
• Decided: November 11, 1909
• Status: Published

Opinion

McCLELLAN, J.

Trespass and trover. The defendant (appellant)' pleaded his right to retake the animal in question under an instrument showing a conditional sale thereof to the plaintiff. One of the issues of fact on the trial was payment vel non of the notes before the taking. This the court properly submitted to the jury. Another was the agency vel non of the defendant’s brother in taking the animal as and when he did. The defendant admitted, testifying as a witness, that he sent his brother to get the horse. This admission, of course, avoided any error, if any, in allowing questions tending to elicit evidence of the brother’s re-

The assignment of error based upon the refusal' Of the court to permit the defendant to file his plea of set-off cannot be considered; the action of the court not being shown by the bill of exceptions.

There was no error in admitting parol evidence relative to the suit instituted by appellant against appellee in the justice’s court. If the record was the best evidence of the facts inquired about, the subject of the inquiries was merely -incidental, collateral, to the issues in the cause; and hence secondary evidence was admissible in reference thereto.—Pollak v. Gunter, 162 Ala. 317, 50 South. 155.

Exemplary damages may' be awarded, when the trespass was wantonly or recklessly accomplished, or in such “reckless indifference to the right of others, which is equivalent to an intentional violation of them.”—Lienkauf v. Morris, 66 Ala. 406; 13 Cyc. p. 105 et seq., and citations in notes.

There was testimony tending to show that the foundation of defendant’s asserted right to retake the animal, viz., notes evidencing a retention of title thereto had been fully paid, operating, of course, the cancellaton of defendant’s rights and privileges thereunder. It also appeared from tendencies of the evidence that the defendant knew this- fact. While there was, as indicat-, ed, keen dispute as to these facts, it was open to the jury to conclude thereon against the defendant. If they so found, and notwithstanding the defendant caused the animal to be taken, the jury was authorized to impose, under the rules before stated, exemplary damages; and this independent of any other acts of aggravation (if so) committed by the defendant’s agent when he took the animal from plaintiff’s wife.—Hicks v. Swift Creek Mill Co., 133 Ala. 411, 425, 31 South. 497, 57 L. R. A. 720, 91 Am. St. Rep. 38. The special charges requested by defendant, forbidding the recovery bf exemplary damages, were, on this record, properly refused.

Charge 6 was faulty in this particular, if not others: It assumes that Noah Garden’s act or trespass was unauthorized.

Affirmed.

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.