Koonce v. Davis

• Decision Date: 31 January 1875
• Citation: 72 N.C. 218
• Court: North Carolina Supreme Court
• Parties: FRANCIS D. KOONCE v. DAVID S. DAVIS.

72 N.C. 218

FRANCIS D. KOONCE

v.DAVID S. DAVIS.

Supreme Court of North Carolina.

January Term, 1875.

The order of a superior military officer, of itself, will not justify his subordinate in taking private property for public use. When, with such order, there is an immediate military necessity for such taking, the subordinate will be justified.

( Bryan v. Walker, 64 N. C. Rep. 141, cited and approved.)

CIVIL ACTION, to recover the value of a buggy, tried at the Spring Term, 1874, of LENOIR Superior Court, before his Honor, Judge Clarke.

The suit was originally commenced in Onslow Superior Court and removed to Lenoir upon affidavit.

The defendant was an officer, of the rank of Major in the infantry service of the Confederate States, and impressed from the plaintiff in the village of Kinston, in the Spring of 1865, the buggy in controversy. On the trial in the Court below, the case was submitted to the jury upon the following issues:

1. Did the defendant take the buggy of the plaintiff?

2. If he took said buggy, did he take it under the command of a superior officer?

3. Was there such a milltary emergency as to justify said taking?

4. Did defendant refuse to restore the buggy when ordered by the General in command?

The jury found the first three issues in the affirmative, and the fourth in the negative.

The material facts of the case are: The defendant was Major in a regiment of Brigadier General Kirkland's Brigade; the General was sick, and told the defendant that he wished to be with his troops, as he was expecting an engagement with the enemy; and as he could not ride on horse-back, nor go in an ambulance, that he must order a detail and take the buggy. The defendant did so, but he never saw the buggy and did not know whether it was taken or not, nor did he know the men who were detailed. His orders were given through a Sergeant; that a buggy could go where an ambulance could not; that the buggy was hitched to an army wagon and taken from Kinston; and that the Federal forces, before whom the Confederate forces were retreating, occupied the town a short time afterwards. That when Gen. Kirkland ordered the buggy to be impressed, he said in reply to objections made by the defendant, that he might as well have the buggy as the enemy. That immediately after the buggy was impressed, an order was obtained from R. F. Hoke, the General in command, to restore said buggy, which order was read to the men who were hitching it to the ambulance; but there was no evidence that this order came to the knowledge of the defendant. That the taking the buggy; the obtaining and reading Gen. Hoke's order, all took place in a period of ten minutes and at a space of seventy-five yards.

The plaintiff asked his Honor to charge the jury:

1. If the jury believed that Gen. Hoke issued an order for the restoration of the property in controversy to the plaintiff, and the same was made known to any officer or private who had control of said property, then they should find for the plaintiff.

2. If the jury believed that Gen. Hoke issued an order for the restoration of the property in controversy, and the said order was made known to, or that the defendant, Maj. Davis had any grounds to believe such order existed, they must find for the plaintiff.

3. That in order to justify the defendants in taking the buggy, on the ground of...