The complaint filed in this case consisted of five counts; the first *Page 314 four of which were in trespass, and the fifth count being based upon the alleged breach of a verbal lease. The defendant pleaded the general issue. There was a verdict and judgment for the plaintiff for $800.
There are four assignments of error. The third assignment is based upon that part of the oral charge of the court which is as follows:
"In this case you can assess actual damages and punitive damages, one or both. Our courts have laid down the rule that wherever there is a wrongful taking of the property of another, or wrongful injury done to it, the law implies that the owner has sustained some damages, and although there has been no actual loss, the owner is entitled to recover some money, and if the offense is accompanied by circumstances of aggravation, then punitive damages may be assessed by the jury, although the property itself has suffered no pecuniary damages."
It has been repeatedly decided by the Supreme Court that in cases of trespass quare clausum fregit, which are attended with the aggravating circumstances of wantonness or malice, the jury may give exemplary damages. That part of the court's oral charge excepted to by appellant announces this proposition of law. Mitchell v. Billingsley, 17 Ala. 391; Western Union v. Dickens, 148 Ala. 480, 41 So. 469; Climer et al. v. St. Clair Co. Tel. Co., 200 Ala. 656, 77 So. 30.
The evidence in this case was in decided conflict. The testimony on the part of the plaintiff tended to prove the allegations of his complaint, an act of trespass and a trespass attended with the aggravated circumstances of wantonness or malice; while at the same time the testimony on behalf of the defendant tended strongly to rebut all this. It was undoubtedly a question of fact for the jury.
The court's oral charge must be taken and reviewed as an entirety. The portion excepted to must be construed in connection with the entire charge, and when so construed the charge excepted to in this case is free from error.
The court instructed the jury that the plaintiff should prove to their reasonable satisfaction the material allegations of his complaint, and that, if he failed to do this, it was their duty to return a verdict in favor of the defendant. After so charging the jury, the court used the language which is set out in this opinion and to which the defendant excepted. There was no assumption here that the plaintiff was entitled to recover, and any implication of that sort was expressly removed by the very language of the court's oral charge used almost immediately before.
The court's refusal to set aside the verdict was without error, as was likewise the court's action in disposing of the rulings upon the testimony made the basis of assignments 1 and 2.
The judgment of the lower court is affirmed.
Affirmed.