WALKER, J., dissenting. The present plaintiff was the tenant or cropper on the present defendant's land during 1901 and 1902, under a farming contract by the terms of which he was to have one-half of the crop made on the land. In May the present defendant instituted summary proceedings before a justice of the peace to eject the (541) present plaintiff. From a judgment against him he, the present plaintiff, appealed to the Superior Court. He gave no undertaking to stay execution and was, by the constable acting under an execution issued upon said judgment, evicted and the present defendant put in possession. At October Term, 1902, the cause came on for trial upon the appeal, and the court held upon the plaintiff's (present defendant) own showing that he was not entitled to recover, and adjudged that a writ of restitution issue to put the present plaintiff in possession. The court also adjudged that the present plaintiff recover one-half of all crops raised on the land. The present defendant appealed, and had time allowed to give bond and perfect his appeal. He failed to give the bond or perfect his appeal, but remained in possession, gathered and sold the crop, receiving therefor $366.79.
The present plaintiff thereupon brought this action, alleging the foregoing facts, and alleging that the defendant's conduct in the premises was unlawful, wrongful and tortious and amounted to an abuse of legal process, and that by reason thereof the plaintiff "was deprived of his house and garden for shelter and support of his family; that he was greatly distressed, agitated and troubled, both in body and mind, thereby, and specifically and more so on account of the condition of his wife, which was known to the defendant, and was put to great mortification and shame thereby, as well as loss of employment," etc. For all of which he demands damages. His Honor rendered judgment "That the plaintiff has not alleged in his complaint matters sufficient to constitute a cause of action for damages other than the value of the crop." He thereupon proceeded to adjudge that the plaintiff recover one-half the value of the crop, *Page 393 ascertained to be $183.39. The court held that, in respect to the crop, the defendant was bound by the judgment rendered at Fall Term, 1902, and refused to allow the defendant to show the amount expended by him in making and saving the crop. (542) From this judgment the plaintiff and defendant appealed. We are of opinion that his Honor was in error in holding that the plaintiff did not state facts sufficient to enable him to submit an issue to the jury in regard to the alleged damage sustained by him for the eviction. While he could have demanded such an issue upon the rendition of the judgment of October Term, 1902, he was not compelled to do so. Section 1776 of the Code expressly secures to him the right to "recover damages of the plaintiff for his removal in such cases as the present." The question is settled by this Court in Woody v.Jordan, 69 N.C. 189. It is there said that the defendant who successfully resists an action of replevin may have his damages assessed in the original action, but that he is not compelled to do so, and may have his separate action on the bond or on the case for damages sustained by the wrongful suing out of the writ and eviction. Mr.Justice Rodman says: "It must be, then, that the common law gave him full indemnity by means of a separate action for the damages for the taking and detention." It seems from the statement of the case on appeal that his Honor was asked by the defendant to hold that the complaint did not state facts sufficient to constitute a cause of action against the defendant "for damages, for abuse of legal process, mental or physical anguish or malicious prosecution, and that the said complaint does not allege malice or want of probable cause, or special damages because of his eviction," and moved the court to dismiss the action as to any and all such alleged causes. The motion was sustained. As we have seen, the judgment, which is (543) the record, and controls in respect to what is decided, simply states that his Honor ruled that the complaint did not allege any damage other than the loss of his crop. We cannot concur with this construction of the complaint. We think it is sufficiently alleged that he suffered damages incident to his wrongful eviction, i. e., "a shelter and support for his family, etc." We do not express any opinion in regard to the character and nature of the damages which he may recover upon the allegations. He *Page 394 alleges a wrongful eviction, and for this injury he may recover such damages as proximately resulted from such injury. His Honor should have submitted an issue involving this inquiry, and instructed the jury in regard to the measure and kind of damages which might be recovered. This Court has, in Remington v. Kirby, 120 N.C. 322, announced the principle upon which punitive damages may be recovered.
We simply decide that upon the complaint the plaintiff was entitled to have an issue as to his actual damages. To this end there must be a new trial.
IN DEFENDANT'S APPEAL.