Bowen v. Harris

• Decision Date: 18 December 1907
• Citation: 59 S.E. 1044,146 N.C. 385
• Parties: BOWEN v. HARRIS et al.
• Court: North Carolina Supreme Court

59 S.E. 1044

146 N.C. 385

BOWEN v. HARRIS et al.

Supreme Court of North Carolina

December 18, 1907

Appeal from Superior Court, Transylvania County; O. H. Allen, Judge.

Action by J. O. Bowen against C.J. Harris and another for damages from wrongful seizure of property belonging to plaintiff. From a judgment for plaintiff for $1.250, defendants appeal. Reversed, and a new trial ordered.

In an action for damages from an interruption of plaintiff's work in delivering logs, as a result of defendant's wrongful detention of some teams, a wagon, and some feed plaintiff could not recover for the interruption unless he proved that it was the necessary result of defendant's wrong, under the conditions existing at the time.

Where in an action for the wrongful detention of property, whereby plaintiff was interrupted in delivering certain lumber, it was shown that plaintiff's business was necessarily interrupted for a definite time and to an extent which plaintiff could not have lessened by reasonable effort, and that during such time plaintiff could, with the means at his disposal, have delivered a definite amount of lumber at a certain profit, such loss would be sufficiently certain for consideration, and would be a proper basis for consequential damages.

The cause of action and orders made therein, in reference to amendment of pleadings, are stated in case on appeal, as follows: "The action was originally brought by the plaintiff against defendants, alleging that he was the owner of one team of mules, one team of horses, one four horse wagon, four sets of harness, one car load of cotton seed meal and hulls, and about three hundred poplar logs, of the value of $700. During the progress of the trial, the plaintiff asked to be allowed to amend the first paragraph of his complaint by striking out the words 'three hundred,' and inserting in lieu thereof the words 'eight hundred and forty,' making the said paragraph read, eight hundred and forty poplar logs, instead of three hundred poplar logs. The court in the exercise of its discretion allowed the amendment, to which order the defendants objected and excepted." There was evidence tending to show that defendants, having an account against the Benedict Love Company, sued out an attachment, and had same levied on two mules, two horses, a four horse wagon, some harness, and a lot of feed, as the property of said company, and held same for 18 days; that plaintiff, claiming to own the property had obtained possession of same before this action was brought. How this was done does not distinctly appear, but by fair intendment it was brought about under order of the court in some former action of claim and delivery against the officer having charge and control of the property. On the issue as to damages, and over the defendants' objection, pointed by exceptions duly noted throughout, there was evidence offered, tending to show that, at the time of the seizure, plaintiff had a contract to deliver logs at the mill of the Benedict Love Company, at the rate of 500,000 feet per month, and was engaged in proper performance of his contract. That he had 65 steers and 75 or 100 hands at a logging camp some miles distant from a railroad station, and the feed was a part of his necessary supplies, and the teams were engaged in hauling the feed to his camp, and he was unable to procure other teams or feed within the period of 18 days specified, and as a result of the seizure his hands became demoralized and left. His steers were necessarily idle during the time and unemployed, and, if his work had not been so interrupted, he could have delivered at the mill, during this period, as much as 300,000 feet of lumber, at a profit of $2 per thousand, and that he had the lumber accessible for the purpose of the contract. Plaintiff was further allowed to state over defendants' objection, and with exceptions duly noted, that he was engaged in building a splash dam to carry the logs to defendants' mill, some distance below on the river, and had deposited seven or eight hundred logs on the river ready to be moved, and that the building of the dam was likewise interrupted, and in about 30 days thereafter, owing to a flood in the river, the logs which had been put in position were washed away and lost, to the value of seven or eight hundred dollars.

Issues were submitted and responded to by the jury, as follows: "First. Was the plaintiff, Bowen, the owner of the personal property described in his complaint, and entitled to the possession thereof? Answer. Yes. Second. Was the property wrongfully taken from the plaintiff's possession by the defendants and wrongfully detained by them? Answer. Yes. Third. What damage has the plaintiff sustained by reason of the wrongful taking and detention of the said property by the defendants? Answer. $1,250."

Exceptions to the charge were also noted, and referred to in the opinion. There was judgment on the verdict for plaintiff, and defendants excepted and appealed.

W. W. Zachary, for appellants.

Welch Galloway and Geo. A. Shufford, for appellee.

HOKE J.

The court was asked to hold that, unless defendant had possession of the property at the time the present action was commenced, plaintiff could not recover. The position is correct as applied to actions brought to recover the possession of the property itself. Such action only lies against the one who has possession of the property at the time the same was instituted. Webb v. Taylor, 80 N.C. 305; Haughton v. Newberry, 69 N.C. 456. While the allegation of the complaint may be broad enough to constitute a demand for the possession, it is evident, from a perusal of the entire pleadings, that the demand was not intended to be for the possession which the plaintiff undoubtedly had when the action was commenced but was to recover damages caused by reason of the wrongful seizure and detention of the property. As heretofore stated, it does not definitely appear how plaintiff reacquired possession of the property, but assuming-and there are statements from some of the witnesses tending to show this-that the possession was restored by means of a former action of claim and delivery, while plaintiff could have had his damages assessed in the former action (Revisal of 1905, § 570), the authorities seem to be to the effect that he was not required to take this course, but, after obtaining possession could, in another action, recover damages for the injury done, by the wrongful seizure and detention of his property. Woody v. Jordan, 69 N.C. 189; Asher v. Reigenstein, 105 N.C. 213, 10 S.E. 889.

Again the court was requested to charge that defendant could not be held liable in the present case, because of the existence, at the time of the seizure, of an unsatisfied mortgage in...