43 So. 733 | Ala. | 1907
The complaint as originally filed, charged that the Marbury Lumber Company; a corporation, W. J. Bozeman and John Culpepper came upon plaintiff’s husband’s premises, residence and homestead, where she was at the time residing, “and with force and arms assaulted and ejected plaintiff from said premises find residence, and put her off of said premises all against the protest,” etc. The defendant pleaded not guilty, and that the plaintiff’s cause of action was barred by the statute of limitations of one year.' -
This complaint was amended' in three particulars: First, by inserting immediately after the word “premises,” and before the words “all against the protest,” etc., the words, “and p lain tiff avers, that the said trespass was willful, and that by said conduct of said defendants, plaintiff was subjected to great humiliation, indignity and shame';” second, 'by inserting after the words, “Marbury Lumber Company, a corporation,” where they appear in the body of the complaint, the
The complaint after these amendments were made, reads as follows: “Georgia Ann Wainwright, plaintiff, claims of Marbury Lumber Company, a corporation — the said defendant, Marbury Lumber Company in all things acting by and through its servants, agents and employees, — W. J, Bozeman and John Culpepper the defendants, two thousand dollars as damages for this, to-wit: That heretofore, to-wit, on the 3d of February, 1904, the plaintiff, being the wife of John Wainwright, was living in the residence of said husband, with her family, and at the homestead of said John Wainwright, in said state of Alabama, and was occupying said residence and premises, personally, with her effects, consisting of household furniture, clothing, cooking ■utensils, etc., and that said defendants, on the 3d day of February, with divers other persons, to plaintiff unknown, assisting, came upon said premises unlawfully, .and entered the said residence and homestead, and with force and arms, committed an assault- and battery on plaintiff, and ejected plaintiff from the said premises ;and residence, and put her off said premises, and plaintiff avers, that said trespass was wrongful, and that by said conduct of said defendants, plaintiff was subjected to great humiliation, indignity and shame; all against the protest and will of the plaintiff, to the damage of two thousand dollars, for which she sues.”
The first amendment referred to was proper. It declared the motives of defendants- in committing the trespass, always proper to be considered by way of aggravation in assessing damages.-
The second amendment was not improper. Tt. was apt t-o show the participation of said lumber company in the trespass. It is well settled, that the master is liable in damages for the injuries willfully and intentionally inflicted by his servants while acting ■ within the
The third amendment was proper. The complaint already charged an assault on plaintiff by defendants, and it was no change of the cause of action to allow the amendment, charging an assault and battery. Adding the word “battery’’ merely showed the character of the assault already charged, by way of aggravation. By the language of the statute actions “for any trespass to person or liberty, such as false imprisonment, or assault and battery,” is barred within six years.— Code 1896, section'2796.
The demurrer to the complaint, that it does not show that plaintiff had either the actual or constructive possession of the premises, because the description of the land alleged to have been entered upon is indefinite and uncertain, that it fails to set up by what authority plaintiff had the right to remain in possession of the premises and not to be ejected therefrom, that the possession mentioned was lawful and right, and that the description of the premises was insufficient and uncertain, was properly overruled, as being merely technical and not meritorious.
Charges 1 and 2, requested by defendants, were properly refused. There was evidence tending to show the participation or encouragement of the lumber company and of Culpepper in the trespass that was committed. It also tends to show an understanding or conspiracy to eject plaintiff from the premises, and it was done. It further tends to show, that the sheriff was acting under a writ of ejectment, which did not include the premises from which plaintiff was ejected.
Affirmed.