Ewton v. McCracken

• Decision Date: 16 December 1913
• Parties: EWTON et al. v. McCRACKEN.
• Court: Alabama Court of Appeals

64 So. 177

9 Ala.App. 619

EWTON et al. v. McCRACKEN.

Court of Appeals of Alabama

December 16, 1913

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Trespass by Georgia C. McCracken against C.J. Ewton and others. Judgment for plaintiff, and defendants appeal. Affirmed.

The action was against the defendant Ewton and the sureties on his bond as constable for levying upon and taking away a lot of household goods alleged to belong to plaintiff, under an execution issued against her husband. The summons shows that the suit was by Georgia C. McCracken, and the amendment allowed was in changing the word "George" in the complaint to "Georgia." The motion to exclude the evidence of plaintiff was based on the same ground, and because of a variance. The following charges were refused to defendants:

"(E) If the jury believe that defendant had already attached and was in possession of the goods before the plaintiff claimed them, then there can be no recovery of exemplary or punitive damages in this case."

"(3) The court charges the jury that if they believe from the evidence that defendant in making the levy believed that he was performing his duty as constable, and that in making the levy he was not in any way actuated by malice, but merely by the desire to perform his duty as constable, then they should find for defendant."

"(B) The court charges the jury that the complaint does not claim for withholding the property, and there can be no damages on that account. The other assignments of error have reference to the refusal of charges similar to those set out."

Clark & Brown, of De Kalb, Miss., and Webb & McAlpine, of Mobile, for appellants.

Joseph I. Clemmons, of Mobile, for appellee.

WALKER P.J.

The court did not err in permitting the complaint to be amended by correcting the Christian name of the plaintiff. Code, § 5367; Beggs & Son v. Wellman, 82 Ala. 391, 2 So. 877. The claim that by the amendment a different party plaintiff was substituted for the original one is notably without merit, in view of the fact that in the original summons in the case, which, so far as the record indicates, remained unchanged, the name of the plaintiff was stated identically as it was in the complaint as amended.

The record does not present for review any action of the court on the motion of the defendants to exclude the testimony of the plaintiff as to the rental value of the property alleged to have been seized. The bill of exceptions does not show that the court ruled on that motion, or that there was any exception to such a ruling.

The ruling of the court on the objection by the defendants to a question to the plaintiff as to the rental value of the property will not be considered, as that ruling has not been assigned as an error.

In its oral charge the court stated to the jury that "for any intentional loss or lack of care punitive damages may be awarded." As applicable to the evidence in the case this instruction was not erroneous. There was evidence tending to prove that some of the furniture of the plaintiff which was taken under a writ against her husband was broken, and that some of it she never got back. In the absence of explanation of these wrongs it was permissible to find that they were due to intentional misconduct of the levying officer. If so, punitive damages could be awarded for a trespass, accompanied by such features of intentional injury. Burns v. Campbell, 71 Ala. 271; 38 Cyc. 1142.

It is urged that the general affirmative charge requested by the defendants should have been given because of a variance between the allegations of the complaint and the evidence offered in support of them. The variance pointed out is that the breach of the constable's bond sued on which is alleged in the complaint is his act in levying upon and taking away the plaintiff's personal property under a writ issued on a judgment of a justice of the peace in the case of G.B. Fisher v. "C." B. McCracken, while the evidence offered...