Mattingly v. Houston

• Decision Date: 25 November 1909
• Citation: 167 Ala. 167,52 So. 78
• Parties: MATTINGLY ET AL. v. HOUSTON.
• Court: Alabama Supreme Court

52 So. 78

167 Ala. 167

MATTINGLY ET AL. v. HOUSTON.

Supreme Court of Alabama

November 25, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Nellie M. Houston against J. L. Mattingly and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

The complaint was as follows: Count 1: "Plaintiff claims of the defendant $3,000 damages for wrongfully taking the following goods and chattels, the property of plaintiff, to wit: [Here follows a detailed statement of the property alleged to have been wrongfully taken.]" Count 2 "Plaintiff claims of the defendant $3,000 damages, for that on, to wit, December 15, 1906, defendants with force and arms entered upon the premises of plaintiff at Bessemer Ala., and took therefrom the following goods and chattels, to wit, the goods and chattels described in the first count of the complaint, wrongfully and maliciously, and to the great damage of plaintiff. Plaintiff avers that at the time of said taking said property was used by her in furnishing a home that plaintiff was very ill and away from home, and that the defendant Sellers, at the instance and procurement of the other defendant, went to her home aforesaid, and forcibly entered said house and removed said property; that the said removal of said property caused great annoyance, suffering and mental anguish to the plaintiff, and caused plaintiff great loss of property, and put her to great inconvenience, to her damage as aforesaid." Count 3: "Plaintiff claims of defendant $3,000 damages for the conversion by them on, to wit, the 15th day of December, 1906, of the following chattels, to wit, the same property as is described in the first count of this complaint, the property of the plaintiff."

The demurrers take the point that the complaint states no cause of action, and because it is not shown that the trespass complained of was a joint trespass. To the second and third counts the demurrers take the point that the property is not set out, and its value is not stated.

The plaintiff afterwards amended the second and third counts by the addition of the words: "And the said goods and chattels were the property of the plaintiff." The pleas were not guilty, and justification under process, the substance of which is set out in the opinion.

The evidence tended to show that the house was rented from J. W. Waldrop as agent for Mrs. K. O. Ware, and that Mrs. Ware, through Waldrop, made the affidavit and procured the attachment to be issued to enforce collection of rent, and that Mattingly and Sellers, as constable and deputy constable, made the levy under the attachment upon the goods found in the house, which had been rented to Charles M. Houston. It further appears from the testimony that at the time the levy was made neither Houston nor his wife were at home, that the house was locked up, and that an entrance was obtained by forcing the lock on the back door. The other facts sufficiently appear from the opinion of the court.

The following charges were refused to the defendant: (12) "The court charges the jury that there can be no recovery in this case for annoyance, suffering, and mental anguish of the plaintiff." Charges 13, 14, 15, and 16 were very similar, and all directed that there could be no recovery on account of inconvenience, suffering, or mental anguish. (7) "The court charges the jury that there can be no recovery of anything except actual damages; and if you find from the evidence that the plaintiff has suffered no actual damages, then you should find for the defendant." (10) "The court charges the jury that if they find from the evidence in this case that the property in question in this case was in the possession of the husband of the plaintiff, and he instructed the constable to go and take charge of said property, then you should find for the defendant." (18) "The court charges the jury that the measure of damages in this case is the value of the hire or use of the articles of property shown to have been the property of the plaintiff, from the time of the taking to the return of the same, together with the damage done to the same, provided there was any damage to them."

Estes, Jones & Welch, for appellants.

C. B. Powell, for appellee.

SAYRE J.

Waldrop, as agent for the owner, had sued out an attachment against Charles M. Houston for rent in arrears. The attachment was levied by Mattingly and Sellers, who were constable and deputy constable, on household goods in the house occupied as a residence by Houston and his wife, the appellee. A major part of the goods had been purchased by Houston from the Martin Furniture Company on the installment plan with title reserved in the company. Appellee contended that the goods bought from the furniture company had been given to her by her husband. After a few days the rights of the furniture company and Mrs. Houston were recognized, and such of the property as belonged to them respectively was restored to their possession; but in the handling incident to the levy some articles belonging to Mrs. Houston had been damaged or destroyed. In the suit which followed judgment was recovered by Mrs. Houston on a complaint containing counts in trespass and trover. From that judgment this appeal is prosecuted.

There was no error in the rulings of the court on questions raised by the pleading. Two counts show a single trespass, one a single conversion alleged to have been the act of the defendants. The only reasonable interpretation of the complaint is that the wrong complained of is charged as the joint act of the defendants named.

The second count charges an offense against "the following goods and chattels, to wit, the goods and chattels described in the first count of the complaint." The third describes them as follows, to wit, "the same property as is described in the first count of this complaint." The method of adopting the averments of preceding counts has been tolerated by this court, but has never been approved as an admirable habit in pleading. Specific reference from one count to another is a different thing. It is not only permissible according to the precedents, but often proper, in order to avoid unnecessary repetition and prolixity, that one count should refer specifically to another. Robinson v Drummond, 24 Ala. 174; Mardis v. Shackleford, 6 Ala. 433. There is no virtue in forms of words. The language used in these counts imports more than a mere incidental reference to the property described in the...