Western Union Telegraph Co. v. Dickens

ANDERSON, J. — The demurrer to the second count of the complaint was properly overruled, as it sufficiently described the premises.—Jean v. Sandiford, 39 Ala. 317; Bessemer Land Co. v. Jenkins, 111 Ala. 135, 18 South. 565, 56 Am. St. Rep. 26. The demurrers to special pleas were properly sustained. The facts set up in the fifth plea, which was but a repitition of the third and fourth pleas in a. more ' extensive and minute way, could not operate as a justification of the trespass. We do not understand that facts which would not justify a trespass, but which would go in mitigation of damages, should be specially pleaded. “Circumstances in mitigation of damages may [485] be shown, if relevant and proper, only, under the general issue, if they dO' not amount to a justification, in which cases they must be specially pleaded.”—28 Am. & Eng. Ency. Law, 600. In the case of Womack v. Bird, 51 Aia. 504, out court held that a justification under legal process had to be specially pleaded, and that it could not he proven under the general issue, if only intended in mitigation of the damages. But we do not understand the rule to he that facts which would not justify the trespass, hut -which would mitigate the damages, cannot he shown under the general issue. The other assignments of error relate to the ruling of the trial court in refusing charges requested by the defendant, and all of which, except the affirmative charge, relate to the measure of damages. If, therefore, this was a case where the jury was authorized to assess punitive or vindictive damages, these charges were properly refused. If not, then they, or some of them, should have been given. It is Avell settled that in cases of trespass qua/re clausum frcgit, which are attended with the aggravating circumstances of wantonness or malice, the jury may give exemplary damages.—28 Am. & Eng. Ency. Law, 610. And our own court is committed to this rule.—Mitchell v. Billingsley, 17 Ala. 391. There was evidence in this case showing acts of aggravation on the part of the defendant’s hands, and from which the jury were authorized to imply malice or wantonness. There was evidence tending to show that plaintiff’s fence was cut and destroyed in several places, and that the doing of this was net at all necessary to the repairing of defendant’s line. Under the evidence the court could not, as matter of law, confine the plaintiff’s recovery to actual damages, and properly refused all the written charges requested by the defendant. There was no error in refusing the general affirmative charge requested by the defendant. If’ plaintiff was entitled under the evidence to nominal damages merely, the defendant was not entitled to the affirmative charge. The judgment of the court is affirmed. Tyson, Simpson and Denson, JJ., concur.