Hart v. Jones, 70 So. 206

Hart v. Jones

70 So. 206 | Ala. Ct. App. | 1915

BROWN, J.

(1, 2) One who is rightfully in the exclusive occupancy of realty, in order to protect his possession, has an undoubted right to eject trespassers who intrude thereon; but this right is not an unqualified right. In ejecting such trespasser, he must use no more force than is reasonably necessary (3 Cyc. 1071 [3, B, II]; Highland Ave. & Belt R. R. Co. v. Robinson, 125 Ala. 489, 28 South. 28) ; and, if a breach of the peace ensues, resulting in an assault and battery, and the defense is invoked that the defendant committed the assault in ejecting a trespasser from his premises, he assumes the burden of showing that he used ho more force than was reasonably necessary, and that he did not unnecessarily hurt or wound the wrongdoer, and the defense is not available if he who invokes it was at fault in bringing on the affray.—Watrous v. Steel, 4 Vt. 629, 24 Am. Dec. *330648; Wilkerson v. State, 12 Ala. App. 100, 68 South. 475; Hendrix v. State, 50 Ala. 148; Ward v. State, 28 Ala. 53.

(3) This defense is in justification, and, to be available in a civil action for assault and battery, must be specially pleaded.—Watrous v. Steel, supra; Mitchell v. Gambill, 140 Ala. 316, 37 South. 290; Barlow v. Hamilton, 151 Ala. 634, 44 South. 657; Morris v. McClellan, 154 Ala. 639, 45 South. 641, 16 Ann. Cas. 305; Morris v. McClellan, 169 Ala. 90, 53 South. 155.

(4) If it be conceded that the place where the difficulty occurred was in a public road, that the defendants owned the land on both sides of the road, and the fee in the soil under the road, that Jones, by stopping his wagon in the road for the purpose of vending his wares, became a trespasser, as some authorities hold, (State v. Buckner, 61 N. C. 558, 98 Am. Dec. 83; Huffman v. State, 21 Ind. App. 450; Adams v. Rivers, 11 Barb. [N. Y.] 390; McDonald v. Newark, 42 N. J. Eq. 138, 7 Atl. 855), yet the defendants’ possession of the road was not exclusive, and their right in the fee to the soil on which the road was located was not such as to justify the use of force in protecting it. The use of the road in this manner did not constitute an additional burden on the fee, but, at most, a nuisance. In such cases what was said in Hendrix v. State, supra, is appropriate: “The public peace is a superior consideration to any one man’s private property; and if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give.law to the weak, and every man would revert to a. state of nature.”

(5) If a public highway is obstructed, with injurious consequences, a nuisance results, and the law affords a remedy to one injurious affected.—Jones v. Bright, 140 Ala. 268, 37 South. 79; Stewart v. Conolly, 123 Ala. 179, 27 South. 303; Stetson v. Faxon, 19 Pick. (Mass.) 147, 31 Am. Dec. 123, and note; Elliott on Roads and Streets (2d Ed.) §§ 665-669.

(6) The fact of the assault by Hart on the plaintiff is not disputed, in fact, is admitted; and, the only plea in the case being the general issue “not guilty,” the plaintiff was entitled to re-cover against Hart at least nominal damages, and such actual and compensatory damages as proximately resulted from the wrong.

(7, 8) But appellants insist that the appellee failed in his proof as against the Bellevue Highlands Company, and the af*331firmative charge should have been given in its behalf, because: (1) All the counts involved the charge that the corporation directed and ordered its servants and agents to commit the assault and battery, and there is not even the slightest tendency in the evidence to show any corporate action on its part; and (2) if, under the pleadings, it was not incumbent on the plaintiff to show that the injury was the result of force applied directly by the corporation itself, as distinguished from force applied by its agent or servant within the scope of his authority, yet the evidence has no tendency to show that any agent or servant of the corporation, acting within the scope of authority, applied force resulting in injury to appellee.

To these contentions, after a consideration in banc of the evidence in the record, we cannot agree. As has often been held, a corporation, of necessity, can only act through its officers, agents, servants, or employees (L. & N. R. R. Co. v. Dawson, infra, 68 South. 674; Sullivan v. Sullivan Timber Company, 103 Ala. 372, 15 South. 941, 25 L. R. A. 543; Beard v. Union & American Pub. Co., 71 Ala. 60) ; and the statute (Code, § 5303) recognizes the president of a corporation as its official head. The evidence offered on the trial tended to show that Hart was not only president of the Bellevue Hotel Company, but that he was president of the Bellevue Highlands Company, and that, as such, he had granted certain concessions to Moore and others to sell their wares upon the property of the corporation and the streets thereof laid out as the “Bellevue Highland”; that during the controversy between Hart and Jones he declared to- Jones that he was in charge of the property, and ordered Jones to get off, and directed Moore to lead his wagon off of the property of the Bellevue Highlands Company. It was further shown that in all sales of property for the Bellevue Highlands Company made by Hart a provision was made in the conveyance forbidding the sale of “things” on the property or streets of Bellevue Highlands. The evidence was sufficient to afford an inference that the defendant Hart was president of the Bellevue Highlands Company, and that in seeking to eject Jones he was acting in the scope of his authority to protect the company’s property and the concessions that it had granted to Moore and others to sell their wares on the property and streets of Bellevue Highlands; that is, that Hart, as president of the corporation, “was about his master’s business,” and, if so, it was liable.—Bessemer Coal, Iron & Land *332Co., et el. v. Doak, 152 Ala. 174, 44 South. 627, 12 L. R. A. (N. S.) 389; Highland Ave. & Belt R. R. Co. v. Robinson, supra; 26 Cyc. 1528, 1531 (V, A, 3, b. II). None of the counts charge that the trespass was willful, wanton, or intentional, and even if they had, proof that the act was by the president, the official head of the corporation, while about his master’s business and within the scope of his authority, would, in our opinion, sustain such averments. •

(9) Evidence that Hart, as president of the corporation, in all sales of property inserted a clause in the deed of conveyance forbidding the sale of goods in the streets and property of the Bellevue Highlands, was not subject to the objection urged against it. The purpose of this evidence was not to prove the contents of any specific deed, but to show a course of dealings that had a tendency to shed light on the conduct of Hart at the time of the difficulty, as tending to show that he was about his master’s business in protecting its property and the concessions granted to Moore and others. It was a collateral fact, and the best evidence was not required.—Garrison v. Glass, 139 Ala. 512, 36 South. 725; 3 Mayf. Dig. 460, § 482 et seq.

Application of the principles we have stated to the charges refused to the appellants and here complained of will demonstrate that they are either.unsound or not applicable to the case as presented on the pleadings and proof. .

We have considered all matters insisted upon in argument, and, as we find no error, the judgment of the city court is affirmed.

Affirmed.