Alabama Penny Savings Bank v. Holmes

• Decision Date: 04 December 1913
• Citation: 63 So. 969,184 Ala. 469
• Parties: ALABAMA PENNY SAVINGS BANK et al. v. HOLMES.
• Court: Alabama Supreme Court

63 So. 969

184 Ala. 469

ALABAMA PENNY SAVINGS BANK et al. v. HOLMES.

Supreme Court of Alabama

December 4, 1913

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by Fannie Holmes against the Alabama Penny Savings Bank and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Gregg &amp Burrow, of Birmingham, for appellants.

George E. Bush, of Birmingham, for appellee.

SAYRE J.

Action of trespass to realty by appellee against appellants. Most of the rulings complained of affected only one or the other of the defendants separately, not jointly; but the assignments of error are joint. Without a severance and a separate assignment, we cannot consider the assignments based on errors of that character.

Appellants complained in the trial court that the assessment of damages was excessive and unwarranted by the evidence, and the court's adverse ruling is presented for review. We think the point well taken, and that the judgment ought to be reversed on that ground. If the verdict was intended as an award of compensation only, it was enormously excessive, even though measured by the standard of plaintiff's testimony not to mention the great weight of defendants' evidence which went to show that the damage suffered by plaintiff was merely nominal.

But appellee (plaintiff) contends that the jury was authorized to assess punitive damages. We will state the reasons of our conclusion as to that. It appeared without dispute that the defendant Gus Allen actually did the things relied on as constituting a tortious intrusion upon plaintiff's alleged possession. Plaintiff's effort was to hold the defendant the Alabama Penny Savings Bank, on the theory that Allen acted by its authority. The damage done (on April 3 1912) consisted in the destruction of some growing vegetables, the remnant of a winter crop of onions and turnips, when on one occasion Allen tied his cow on a part of the premises which had been wired off for a garden. Plaintiff also testified that Allen tore away a partition fence between his (Allen's) premises and lot 16, the locus in quo; but defendants brought testimony to show, and it was not contradicted, that Allen tore away an old fence, and replaced it with a new one a few inches over in plaintiff's direction on a line which had been located as the property line by a surveyor he had employed for the purpose, in which location the bank acquiesced. Apparently plaintiff's case depended upon the evidence she offered of a bare actual possession, though it may be that she relied also in the court below upon the fact that she was one of the children and heirs of a former owner as proof that her possession was rightful. Whatever the precise contentions may have been on the trial, the competency of the testimony adduced, over the bank's objection, with the purpose of establishing her contention that the bank was liable because Allen acted on its procurement or advice being conceded, and its sufficiency to that end being also conceded, though it seems much more probable that the bank consented only, still that testimony, in connection with some other, left no reasonable ground for doubting that Allen acted in good faith in reliance upon the bank's authority and its supposed ownership and possession of the property. Now the bank on its part claimed title through the forclosure of a mortgage which had been made by plaintiff's father covering lot 16 and lot 8; the latter being the lot upon...