Chappell v. Falkner

• Decision Date: 12 November 1914
• Docket Number: 504
• Citation: 66 So. 890,11 Ala.App. 382
• Parties: CHAPPELL et al. v. FALKNER.
• Court: Alabama Court of Appeals

66 So. 890

11 Ala.App. 382

CHAPPELL et al. v. FALKNER.

No. 504

Court of Appeals of Alabama

November 12, 1914

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Detinue by W.A. Falkner against William J. Chappell and others. Judgment for the plaintiff, and defendants appeal. Corrected and affirmed.

Allen & Bell, of Birmingham, for appellants.

L.J Cox, of Birmingham, for appellee.

THOMAS, J.

The appellants, who were the defendants in a detinue suit, appeal from a judgment against them, and assign as error, among other things, the refusal of the lower court to give the affirmative charge in their favor, here urging that it should have been given for two reasons: First, because the evidence failed to show that the defendants were in possession of the property at the time the suit was brought; and, second because the evidence failed to show that the plaintiff made any demand on defendants for the possession of the property prior to bringing the suit.

With respect to the first contention, and as a complete answer thereto, without further consideration, it need only be said that the common-law rule, previously obtaining in this state requiring the plaintiff in a detinue suit, when the defendant pleads the general issue, to prove possession in defendant of the property at the time of the commencement of the suit, has been abrogated by statute (Gen.Acts 1911, p. 33), which declares, among other things:

"That the general issue, when pleaded in a detinue suit is an admission of the possession by defendant of the property sued for at the time of the commencement of the suit." Gen.Acts 1911, p. 33.

The other contention is equally without merit. Demand before suit brought is not necessary to the maintenance of an action of detinue, except in cases where possession has been lawfully acquired and a demand is essential to the termination of the relationship under which it is held. 3 Mayf.Dig. 53; Foster v. Johnson, 13 Ala. 379; Worthington v. Rhodes, 145 Ala. 656, 39 So. 614; Black v. Slocumb Mule Co., 8 Ala.App. 443 62 So. 308. Where, as here, the plaintiff's property has been tortiously taken from his possession by another and is held by defendants under a claim of title in that other, who invested them with the possession so acquired by such tortious taking, no demand is necessary. The holding or detention under such circumstances partakes of the character of the taking, and becomes itself tortious and unlawful as to plaintiff without any demand on his part for possession; nor is such taking and holding relieved of its tortious character by the fact, if it be a fact, that the party who took--defendants' granddaughter--and defendants, who hold under her, acted and are acting in so doing in good faith, honestly believing it was and is her property. The owner of property is none the less injured by one who honestly takes it, without his consent, under a bona fide belief that it belongs to the taker, than he is by one who feloniously takes it, without his consent, knowing that it does not belong to the taker. The act of each of such takers would be tortious as against the owner, a trespass de bonis asportatis, the first only a civil and the latter both a civil and a criminal trespass. The bona fides of the wrongful taking is material in a civil suit only as bearing on the question of punitive damages, and then only in an action appropriate to their recovery.

The evidence in this case tended to show that the plaintiff owned the animal sued for, that the granddaughter of the defendants, who was a minor living with them, lost an animal of the same kind and description, and that in searching for the lost animal the granddaughter found the animal here sued for near plaintiff's premises, and took it home,...