
    Carter v. Fulgham.
    
      Action of Trespass.
    
    1. Action of trespass; admissibility of evidence; rés gestae. — In an action of trespass to recover damages for the wrongful taking of personal property, declarations or statements made by the defendant at the time of the taking of the property are competent and admissible in evidence as a part of the res gestae of the act of taking.
    2. General affirmative charge; when should not he given. — The general affirmative charge should not be given at the request of either party, where the evidence in the case is.open to a reasonable inference, of a material fact unfavorable to the right of recovery by the party requesting the charge.
    3. Trespass; when punitive damages not recoverable. — In an action of trespass, where there is no evidence in the case which authorizes the recovery of punitive, or exemplary damages, such damages can not be recovered; and a charge so instructing the jury is properly given at the request of the defendant.
    4. Charge to the jury; properly refused uXien inconsistent. — A charge requested to be given to the jury is properly refused when it contains inconsistent instructions.
    5. Trespass; when possession sufficient to sustain action. —• Possession alone is sufficient to sustain an action of trespass for the wrongful taking of personal property as against a mere wrong doer who „s not the real owner of the property.-
    6. Same; sufficiency of evidence. — In an action of trespass to recover damages for the wrongful taking of mules, where the evidence shows that the United States government had lost mules which had - either strayed or been stolen, and the defendant had an arrangement or agreement with a United States officer, whereby he was to receive compensation for every mule found and identified by him, which had been lost or stolen, the mere receiving of compensation by the defendant without anything more for the mules recovered, which were supposed to have been taken or stolen from the United States government, would not of itself amoúnt to a trespass; but if the defendant aided the officer of the United States government by locating and pointing out the mules for the purpose of their oeing taken, and he received the compensation for this, and the taking of the mules by the officer was wrongful, then the defendant would be a joint tort-feasor.
    Appkai, from the Circuit Court of Marshall.
    Tried before the Hon. Jambs A. Biibro.
    This was an action of trespass brought by the appellant, John C. Cartel*, against the appellees, Oscar Fulghani and J. Q. Jamar; and soughfl to recover damages for- the wrongful taking by the defendants of plaintiff’s mules. The facts of the case are sufficiently stated in the opinion.
    There were several charges requested by the; plaintiff, to he refusal to give each of .which the plaintiff separately excepted; but under* the opinion on the present appeal it is unnecessary to set out these charges at length.
    The court, at the request of the defendants, gave 'to the jury the following written charges, to the giving of each of which the plaintiff separately excepted: (1.)
    “If the jury believe the evidence, they must find for' the defendants upon the question of punitive or exemplary damages.” (2.) “There is no evidence in this case to sustain a verdict on punitive on exemplary damages.” (3.) “The court charges the jury that if Carter had two of the mules, of the U. S. government and if the defendants 'took one of these mules and one of Carter’s own mules on January 24th, 1899, 'and if Carter was willing for defendants ü> take his own mule-in order that he (Carter) might retain the other government mule then plaintiff cannot recover for his own mule, even if Carter did sa.y that he objected to the taking of said mules.” (4.) “The court charges the jury that before the plaintiff can recover he; must show that he is the owner of the mules, or some of them, and the burden of proving this is on tire plaintiff, and he must prove ill to tire reasonable satisfaction of the jury by the preponderance of the evidence, and if after considering all tire evidence the jury are unable to say with reasonable certainty that the property sued for, or1 some part of it, is the property of the plaintiff, the jury should find for the defendants.” (5.) “If the jury believe the evidence, they must find for the defendant Oscar Fulgham.”
    Upon the trial of the cause the jury returned the following verdict: “We, the jury, find the issue in favor of Oscar Fulgham, and for plaintiff against J. Q, Jamar for two hundred and fieri dollars;” and upon this verdict judgment was rendered in favor of the plaintiff against Jamar and in favow of the defendant Fulgham. From this judgment the plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.
    John A. Lusk, for appellant.
    It is not the law that before one in possession of personal property can recover for the forcible talcing, he must show that he is the personal owner. Possession is sufficient as against all Avho do not shovv a superior right. — 2 Greenleaf on EAddence, §§ 613, 618; Tarry v. Brown, 34 Ala. 159; Grigg v. State, 58 Ala. 437; Miller v. J ones, 26 Ala. 247; Wilkinson v. Searcy, 76 Ala. 180.
    The affirmative charge should not be given where there is a conflict in the evidence, or where the evidence is open to reasonable inference of a material fact unfavorable to the party requesting the charge. — Hall v. Posey, 79 Ala.. 84; L. & N. IZ. IZ. Go. v. Lancaster, 121 Ala. 471; Alabama State Land Go. v. Slaton, 120 Ala. 259.
    All persons Avho command, instigate, promote, encourage,, advise, countenance, co-operate in, aid or abet the committing of a trespass by another', or Avho approve of it after it is done, if done for their benefit, are co-trespassers Avith the person committing the trespass. Kirkwood v. Miller, 73 Am. Dec. 134, and note on page 137-141, and authorities there cited.
    Oscar It. Hundley and O. D. Street, contra,
    
    cited Cowan v. Easterly Hardware Go., 95 Ala,. 324.
   DOWDELL, J.

This Avas an action in trespass to recover da,mages for the talcing by the defendant of the plaintiff’s mules. The appellee Fulgham, aauis sued jointly Avith one Jamar. The jury returned a, verdict in favor of tire plaintiff against the defendant Jamar alone. On this AWdict judgment Avas rendered, from Avliicb the present appeal is prosecuted by the- plaintiff.

There Avas evidence tending to show that the United States government had lost mules which had either strayed oir been stolen, and that Fulgham, who Avas the sheriff of Madison county, had an arrangement or agreement Avith the United States officers whereby said ‘ Fulgham was to1 receive twenty-five dollars for every mule, found and identified by liim which had been lost or stolen; that Jamar went under the instructions .of Fulgham to look after and identify the lost mules; that Jamar located and found the mules in question here in Marshall county; that one: Holmes, an officer of the Federal government, on this information went with Jamar into Marshall county where he, Jamar, had located and found the: mules, and there said I-Iolmes, with Jamar, took the mules from the plaintiff Carter and: carried them to Huntsville.. The evidence on the pairt of the plaintiff tended to show that the mules in question wore his property. The; plaintiff offered to prove by John M. Cartier, who- was examined as a witness in behalf of plaintiff, that he, witness, heard Jamar at the' time he took one of the mules in question, tell the plaintiff that ho, Jamar, had examined this mule, but could find no' mark of U. S. on it. On motion of the defendant this testimony was excluded. In this the court was iu error. This declaration being made at the time of the taking of the mule, was competent and admissible as a part of the res gestae of the act of talcing.

Notwithstanding the positive denial on the part of the defendant Fulgham that he authorized the defendant. Jamar as his deputy and-agent to have anything to do in the actual flaking of mules found and identified by him, and notwithstanding his positive statement to the effect, that he instructed Jamar1 not to- flake on have anything to do with the talcing of any mules so found and identified by him, there, was evidence on the part of the plaintiff which tended to' show that the defendant Jamar in acting with and assisting Holmes, the United! States officer, in thetaicing of tire mules in! question, did SO' under' the direction of Fulgham, and from which evidence the jury might have, reasonably inferred thalil Jamar in aiding Holmes in the talcing of said mules was acting as Fulgham’s agent. The court, therefore, erred in giving- the general affirmative charge at the: request of the defendant Fulgham. The affirmative charge should never he given where the evidence is open to a reasonable inference of a material fact unfavorable to tibe right, of recovery by the party requesting the charge. — L. & N. R. R. Co. v. Lancaster, 121 Ala. 471; Alabama State Land Co. v. Slaton, 120 Ala. 259; Hall v. Posey, 79 Ala. 84.

There was no evidence in Hie case which authorized the recovery of punitive or exemplary damages. Consequently there was no- error in, the. giving of charges 1 and 2 at the request of the defendants.

The: suitl was for the recovery of damages for the wrongful taking of three, mules, the property of the plaintiff. Charge 3 is had, if for no other reason, on the ground of inconsistency. It hypothesizes the willingness of the plaintiff, in the talcing hy the defendants of the. plailnltiff’s mule, and at the same time the plaintiff’s objection to the taking. Besides, this charge ignores the evidence, as to the subsequent taking by the defendants, of the other mule, referred to in the charge as the “government mule,” which was left with plaintiff at the time of the taking of his mule. Or in other words, the change was calculated to lead the jury to the conclusion that if the jury should find from the evidence, thaltl two of the three mules sued for, belonged to the government and that no tresspass was committed in their taking, and1 that the third mule was plaintiff’s, still, he could noil recover.

Possession alone is sufficient to sustain the action of trespass as against a mere wrongdoer wlro is not the real owner’ of the chattel. — Tarry v. Brown, 34 Ala. 159. Charge 4 given at the instance of the defendant was opposed to tins view; besides it imposed upon the plaintiff too high a duty hy requiring him to satisfy the jury by a preponderance of the evidence. The giving of this cliai'ge was, therefore, erroneous.

If Jamar aided Holmes by locating and pointing out the mules for the purpose of their being taken, and for which he was to1 receive compensation, and the taking of the mules by Holmes was wrongful, then Jamar was a joint -tort-feasor. And if Jamar acted as the agent and under' the instructions of Fulghaan, then Fulgham would be equally guilty with. Holmes and Jamar in a wrongful taking.

The mere reiceaviiag of compensation by Fulgbam, without anything more, for mules recovered which were supposed to- havei been taken or stolen from the United States government, would ' not • of itself and alone amount to a trespass. However, it was competent to be shown in evidence as tending to. connect them with the tresspass.

There were a number of charges requested by the plaintiff ih writing which were refused to him by the court, and to which exceptions were1 reserved. We deem it unnecessary tio treat these refused charges separately, as what we have said we think is sufficient for the purpose of another trial. For tire errors pointed' out, the judgment, of the circuit court is reversed and the cause remanded.  