Carter v. Fulgham

• Decision Date: 20 May 1902
• Citation: 32 So. 684,134 Ala. 238
• Parties: CARTER v. FULGHAM ET AL. [1]
• Court: Alabama Supreme Court

32 So. 684

134 Ala. 238

CARTER v. FULGHAM ET AL. ^[1]

Supreme Court of Alabama

May 20, 1902

Appeal from circuit court, Marshall county.

Action by John C. Carter against Oscar Fulgham and another. From a judgment for plaintiff against defendant Jamar alone plaintiff appeals. Reversed.

This was an action of trespass brought by the appellant, John C Carter, against the appellees, Oscar Fulgham and J. Q. Jamar and sought to recover damages for the wrongful taking by the defendants of plaintiff's mules. The facts of the case are sufficiently stated in the opinion. There were several charges requested by the plaintiff, to the refusal to give each of which the plaintiff separately excepted; but, under the opinion on the present appeal, it is unnecessary to set out these charges at length. The court, at the request of the defendant, gave to the jury the following written charges, to the giving of each of which the plaintiff separately excepted: "(1) If the jury believe the evidence, they must find for the defendants upon the question of punitive or exemplary damages. (2) There is no evidence in this case to sustain a verdict on punitive or exemplary damages. (3) The court charges the jury that if Carter had two of the mules of the U.S. government, and if the defendants took one of these mules and one of Carter's own mules on January 24, 1889 and if Carter was willing for defendants to take his own mule in order that he [Carter] might retain the other government mule, then plaintiff cannot recover for his own mule, even if Carter did say that he objected to the taking of said mules. (4) The court charges the jury that, before the plaintiff can recover, he must show that he is the owner of the mules, or some of them, and the burden of proving this is on the plaintiff, and he must prove it to the reasonable satisfaction of the jury by the preponderance of the evidence; and if, after considering all the evidence, the jury are unable to say with reasonable certainty that the property sued for, or some part of it, is the property of the plaintiff, the jury should find for the defendants. (5) If the jury believe the evidence, they must find for the defendant Oscar Fulgham." Upon the trial of the cause, the jury returned the following verdict: "We, the jury, find the issue in favor of Oscar Fulgham and for plaintiff against J. Q. Jamar for two hundred and ten dollars," and upon this verdict judgment was rendered in favor of the plaintiff against Jamar and in favor of the defendant Fulgham. From this judgment the plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

John A. Lusk, for appellant.

Oscar Hundly and O. D. Street, for appellees.

DOWDELL J.

This was an action in trespass to recover damages for the taking by the defendants of the plaintiff's mules. The appellee Fulgham was sued jointly with one Jamar. The jury returned a verdict in favor of the plaintiff against the defendant Jamar alone. On this verdict judgment was rendered, from which the present appeal is prosecuted by the plaintiff. There was evidence tending to show that the United States government had lost mules, which had either strayed or been stolen, and that Fulgham, who was the sheriff of Madison county, had an arrangement or agreement with the United States officers whereby said Fulgham was to receive $25 for every mule found and identified by him which had been lost or stolen; that Jamar went, under the instructions of Fulgham, to look after and identify the lost mules; that Jamar located and found the mules in question here in Marshall county; that one Holmes an officer of the federal government, on this information, went with Jamar into Marshall county, where he (Jamar) had located and found the mules, and there said Holmes, with Jamar, took the mules from the plaintiff, Carter, and carried them to Huntsville. The evidence on the part of the plaintiff tended to show that the mules in question were his property. The plaintiff offered to prove by John M. Carter, who was examined as a witness in behalf of plain...