86 So. 394 | Ala. | 1920
The appellee sued the appellant for damages consequent upon an alleged trespass committed by appellant's agent, Elmer Hinds. The allegations of the second count (the substance of which will be reproduced in the report of the appeal) cast it in the category of counts held, in City Delivery Co. v. Henry,
By mistake a consignment of freight was delivered to appellee; and, the error being discovered, an agent of the appellant, common carrier, went to the dwelling of appellee, and by and with her consent entered her premises for the purpose of removing the chattels, taking with him other servants to handle the goods. The appellee had paid 75 cents drayage in moving the goods from the depot to her dwelling. The payment of this sum she demanded of Hinds, as well as "$1 for her trouble" in the premises. Hinds wanted to "check up" the goods, and appellee, agreeing to that, also asserted all along her entire willingness to the removal of the goods if these charges were paid. Hinds expressed his willingness to pay the drayage charge, but protested against the payment of the other charge of $1, which on the trial the court correctly instructed the jury the appellee had no right to demand. After a part of the goods had been removed, appellee stopped the removal, placing herself in the doorway. Hinds later paid her both the charges, but she testified that at or during the suspension of the act of removing the goods he made offensive remarks to her with respect to the $1 charge, and said that he would or ought to have her arrested and went from her house to or towards the county jail in the neighborhood. That appellee had a right to the goods themselves is not claimed. There is no evidence that any tortious wrong was committed by Hinds or his laborers in connection with the entry of the premises, or while thereon or in the removal of the goods, other than may have attended or resulted from the language indicated.
As stated, the first count is in trespass. The appellee's consent to the entry and to the removal of the goods, to which she made no claim, upon the sole condition that the two charges, aggregating $1 and 75 cents, be paid to her, precluded Hinds from being a trespasser, unless his acts or conduct, under the license given by appellee, changed his relation to a trespasser.
Following the true interpretation of the pertinent phase of the pronouncement made in the "Six Carpenters Case," 8 Coke, 146a, this court held, in Snedecor v. Pope,
Even in the case of entries authorized alone by law, the change of the status of the enterer to a trespasser ab initio is not effected unless the act or conduct, abusive of the authority of entry given by law, invoked as changing his status to a wrongdoer from the beginning, must be positive in character, must be an act that would have amounted to a trespass if the entry had not been authorized by law. Adams v. Rivers, supra. No reason appears upon which to found a conclusion that a less positive act or affirmative conduct, amounting otherwise to a trespass, would suffice to constitute one a trespasser, within the doctrine stated in Snedecor v. Pope, supra, who has entered by a personal license. In consonance with this doctrine it was said in Adams v. Rivers, supra:
"No case has been cited showing that a man will forfeit a license granted by law, by the use of vituperative language; and none such have fallen under my notice. In all the cases, except Adams v. Adams and Bond v. Wilder, some positive act, such as if done without authority would be a trespass, has been held essential to make the party a trespasser ab initio. These cases may have been decided upon local statutes. *541 * * * But no act will amount to a trespass unless the same act would be a trespass if committed on any other land of the plaintiff. Language, however licentious and abusive, is not a trespass, within the appropriate meaning of that term. Nor can a party be made a trespasser upon the freehold of the adjoining owners of the soil, by the uttering of abusive language as he passes along the road. A person who disturbs the public peace as he passes along the road, by singing obscene songs and using boisterous and obscene language, may be liable to be punished, at the suit of the public, for a breach of the peace, but he is not liable in trespass at the suit of the adjoining owners. These acts, however censurable, are not acts of trespass."
Since the only wrong attributed by appellee to Hinds was the use or application of offensive words, denoting no trespassing act that violated or affected any right of appellee with respect to these goods which she never at any time claimed, the defendant was not liable for the consequences of a trespass by Hinds or his aids on the occasion in question. However, the only plea was the general issue; and this court appears to have been long since committed to the view that, notwithstanding the broad provisions of Code, § 5331, justification in any action of trespass must be specially pleaded. Finch v. Alston, 2 Stew. P. 83, 23 Am. Dec. 299; Barrett v. Mobile,
If count 2 should be construed as not charging the defendant itself with a directly authorized trespass, there was no evidence supporting the allegation of the second count that the trespass was malicious, since language, however offensive, cannot alone constitute a trespass. Adams v. Rivers, supra. Hence the court erred in refusing to instruct the jury, as requested in a special charge, that Hinds did not "maliciously trespass upon the premises of which plaintiff was in possession."
The plaintiff was permitted to show the physical condition of her brother. While some argument is made by appellee to justify this action of the trial court, no authority is cited in brief as supporting the admissibility of this evidence. It was error in the trial court to allow it. This matter or condition was without bearing upon the issues in the case or upon the measure or amount of the damages, if plaintiff was found entitled to recover. There was evidence and inferences from evidence tending to show Hinds' agency for the defendant in going for and removing the goods.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
