Chappell v. Ellis

• Citation: 31 S.E. 709,123 N.C. 259
• Parties: CHAPPELL v. ELLIS et al.
• Decision Date: 06 December 1898
• Court: United States State Supreme Court of North Carolina

31 S.E. 709

123 N.C. 259

CHAPPELL v. ELLIS et al.

Supreme Court of North Carolina

December 6, 1898

Appeal from superior court, Iredell county; McIver, Judge.

Action by Elizabeth Chappell against Milton Ellis and another. There was a judgment for plaintiff, and defendants appeal. Reversed.

A wrongful seizure and levy on chattels, if attended with malice, wantonness, oppression, brutality, insult, gross negligence, or certain kinds of fraud in aggravation of the injury will warrant the recovery of exemplary damages.

B. F Long, for appellants.

Armfield & Turner, for appellee.

DOUGLAS J.

This is an action to recover damages for the unlawful seizure and detention of personal property, and also for mental suffering caused thereby. The plaintiff alleges that a writ of possession was issued in favor of the defendant Ellis against her husband and herself, and also directing the sheriff to make the sum of $197, with interest and costs, out of her said husband; that her said husband had not been living with her for two years, having abandoned her, and removed to the state of Indiana; that the defendant Thorpe deputy sheriff, in obedience to said writ, removed her from the premises; and also, under the direction of the defendant Ellis, levied upon the following personal property, belonging to her, to wit, "about 35 bushels of corn, 5 bushels of peas, 1 yearling calf, and 2 shotes, and delivered the same to the defendant Ellis, against the will and over the protest of the plaintiff, she at the time informing Thorpe that she was the sole owner of said property; that the said Ellis took the said property to his home, and kept it for more than a week, when he returned a part of the corn and peas, the yearling, and one shote; and that the property not returned was reasonably worth $20." She further alleges "that she is old and infirm, having reached the age of 64 years, and has to depend upon her own labor and exertion for a support; and, after the removal of the said property by Thorpe and Ellis, she had nothing upon which to live, and no home to shelter her body; that by the wrongful act of Thorpe and Ellis in taking from her the said property, contrary to the writ aforesaid, and without authority in law, and depriving her of the only means of support she then had, in her advanced age in life, she has suffered greatly in body and mind, to her damage $500."

It is unnecessary to consider the answers or the general testimony as the jury evidently believed the plaintiff, as they found every issue in her favor. We see no error in the charge of the court of which the defendants can complain, as it appears from the record that every instruction asked by them was given. Therefore, their third assignment of error--"For that his honor failed to instruct the jury as prayed by defendant in the prayers numbered 1 to 9, inclusive, and failed, except the 8th given"--cannot be considered by us. The record states that "the defendant asked the following special instructions in writing, which were given by the court." Then follow immediately eight numbered prayers, one or two of which it would be difficult to sustain under exception by the plaintiff.

But there is one exception by the defendants which, we think must be sustained, and that is to the testimony of the plaintiff's witness Reavis. He was asked, "What was the condition of the plaintiff next day?" and answered, "She was crying and going on considerably; seemed to be in great deal of trouble; and was in trouble for weeks afterwards." As this testimony tended to show mental suffering, and as it is evident that the greater part of the damages awarded was based upon such suffering alone, the exception becomes of vital importance. The doctrine of mental suffering, or "mental anguish," as we prefer to call it, as indicating a higher degree of suffering than arises from mere disappointment or annoyance, contemplates purely compensatory damages, and, as far as we are aware, has never been...