Alabama Fuel & Iron Co. v. Andrews

• Decision Date: 15 January 1925
• Docket Number: 6 Div. 245
• Citation: 102 So. 799,212 Ala. 336
• Parties: ALABAMA FUEL & IRON CO. v. ANDREWS.
• Court: Alabama Supreme Court

102 So. 799

212 Ala. 336

ALABAMA FUEL & IRON CO. v. ANDREWS.

6 Div. 245

Supreme Court of Alabama

January 15, 1925

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action in trespass by G.W. Andrews against the Alabama Fuel & Iron Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Where trial court takes prompt measure to rid a case of improper matter and subsequently refuses or grants a motion for new trial, appellate court will indulge in presumption in favor of such ruling.

Counts 4 and 5, upon which the case was tried, are as follows:

Count 4: "Plaintiff claims of the defendant ten thousand ($10,000.00) dollars as damages, for that heretofore on the 23d day of July, 1923, plaintiff and his family were in the possession of the house and lot known as house No. 83, at Overton, Jefferson county, Ala., and were residing therein and on said date an agent, servant, or employee of the defendant, to wit, a man named Ford, while acting within the line and scope of his authority as such agent, servant, or employee, wrongfully, knowingly, and intentionally committed a trespass upon said premises, and in the commission of said trespass, while still acting within the line and scope of his authority as such agent, servant, or employee entered the plaintiff's said home uninvited, and without the plaintiff's permission, and disarranged the furniture therein, and removed it from the premises wrongfully, and plaintiff avers that as a proximate consequence of said wrongful conduct the plaintiff's said premises were greatly damaged, and the plaintiff was caused to suffer great mental and physical pain, and, in addition to compensatory damages, plaintiff claims also punitive damages."

Count 5: "Plaintiff claims of the defendant ten thousand ($10,000.00) dollars as damages, for that heretofore on or about the 23d day of July, 1923, an agent, servant, or employee of the defendant, while acting within the line and scope of his authority as such, his name being Mr. Ford entered the plaintiff's home, where he and his wife and five children were living at, to wit, house No. 83, at Overton, Jefferson county, Ala., and then and there wrongfully took possession of the following goods and chattels the property of the plaintiff, while still acting within the line and scope of his authority as such agent servant, or employee, namely plaintiff's household furniture and effects, which were in his said home, consisting of several beds, bedsteads, mattresses, chairs, dressers, washstands, cooking stove, and piano, and other articles in use in said home, and removed said articles from his said home. Plaintiff avers that the said agent knew that the taking of said goods and chattels was wrongful, and he committed the said wrong willfully and intentionally while still acting within the line and scope of his authority as such agent, servant, or employee. Plaintiff avers that, as a proximate consequence of said wrongful conduct, the plaintiff's said household furniture was greatly damaged, and the plaintiff was put to a great deal of trouble, inconvenience, and expense in providing the necessary comforts and conveniences for his said family, of which they had thus been deprived, and the plaintiff was caused to suffer great mental and physical pain and, in addition to compensatory damages, the plaintiff claims also punitive damages."

Plaintiff was employed by the defendant under a contract of employment fixing the conditions under which the work should be done and the service continued. The parties also entered into a contract of lease, by the terms of which plaintiff rented a house, designated as No. 83, the property of defendant, at a stipulated monthly rental. It is recited that the lease is made and the rental fixed by reason of the employment by the lessor, and it is provided that, if the lessee should at any time be discharged, with or without cause, from the service of the lessor, or under other named contingencies, the lessor shall have the right to terminate the lease and re-enter and take possession of the premises upon one day's written notice to vacate, either given the lessee in person, or left at the premises.

It appears that the plaintiff was discharged from the service of the defendant, but continued to occupy the house; that some three weeks later he was reinstated in the service; and that a few days after reinstatement the alleged trespass occurred.

Charges 16, 33, 34, 18, and 17, made the bases, respectively, of assignments 17, 20, 21, 22, and 23, are as follows:

"(16) I charge you, gentlemen of the jury, that, if you are reasonably satisfied from the evidence that the defendant was the owner of the property upon which the plaintiff resided, and that at the time of the alleged trespass the possessory interest of the plaintiff in said property had terminated, then you cannot find a verdict for the plaintiff.

"(33) I charge you, gentlemen of the jury, that, if you are reasonably satisfied from the evidence that the premises described in the complaint and upon which it is alleged trespass was committed, was at the time of the acts complained of the property of the defendant, and if you are reasonably satisfied from the evidence that the defendant by consent or otherwise of the plaintiff had the right to enter said premises, then I charge you that your verdict must be for the defendant.

"(34) I charge you, gentlemen of the jury, that, if you are reasonably satisfied from the evidence in this case that at the time of the acts complained of the defendant was the owner of the premises, which it is alleged were trespassed upon, and that at said time the defendant had a right to enter upon said premises, then I charge you that you cannot find a verdict for the plaintiff, even though you may be

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