Brookside-Pratt Mining Co. v. Booth

• Decision Date: 17 April 1924
• Docket Number: 7 Div. 426.
• Citation: 100 So. 240,211 Ala. 268
• Parties: BROOKSIDE-PRATT MINING CO. v. BOOTH.
• Court: Alabama Supreme Court

100 So. 240

211 Ala. 268

BROOKSIDE-PRATT MINING CO. v. BOOTH.

7 Div. 426.

Supreme Court of Alabama

April 17, 1924

Rehearing Denied May 15, 1924.

Appeal from Circuit Court, Shelby County; W. M. Lackey, Judge.

Action for damages for assault and battery by John T. Booth against the Brookside-Pratt Mining Company. Judgment for plaintiff and defendant appeals. Reversed and remanded.

p>Page S. Coleman, all of Birmingham, for appellant.

Longshore Koenig & Longshore, of Columbiana, for appellee.

THOMAS J.

The suit was to recover damages for an assault and battery alleged to have been committed by defendant's agents upon plaintiff while he was at defendant's commissary. The trial was had on the second count of the complaint to which demurrer was overruled. The assignment of error challenging the ruling on demurrer is not insisted upon. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.

The second, third, and fourth assignments of error challenge the sustaining of demurrers to pleas A, B, and E. Demurrers were overruled to pleas C and D. The insistence of appellant is that the latter pleas were drawn under section 7827 of the Code of 1907, while the pleas to which demurrers were sustained are not so drawn.

A rule of good pleading long prevailing is that whatever the parties respectively allege in their subsequent pleadings must be referred to, fortify, and support, respectively, the complaint or declaration of the plaintiff and the plea of the defendant. The observance of this rule is imperative to prevent an entire change of the "foundation of the action and of the defense" by "successive stages of the pleadings" and thus defeat the primary object of pleading. That is to say, the replication must so answer the plea as to support the complaint, and the rejoinder must so answer the replication as to support the plea. In the same manner, the surrejoinder must support the replication "the rebutter the rejoinder, and the surrebutter the surrejoinder." The result of this rule, as said by Mr Gould, the process being thus conducted, is that which is last pleaded on either side necessarily goes in support of what was first pleaded on the same side. Ex parte Hines, Sir. Gen. (Hines v. McMillan), 205 Ala. 17, 87 So. 691; Wills' Gould on Pleading (6th Ed.) p. 93.

We take as illustrations pleas D and E; the latter was eliminated by demurrer, probably on the ground that defendant's commissary was a public place for the retail sale of goods, wares, and merchandise usually sold to the public in such commissaries, and that plaintiff had the right to go there to buy (smoking tobacco, as he says in his replication), even though he had been previously warned not to do so or not to come upon the defendant's premises.

The merchant, as proprietor of a commissary, or a storekeeper has the right to withdraw the express or implied invitation to trade from such persons as he may desire, and thereafter if such persons come into his store or commissary he may eject them by the use of no more force than is reasonably necessary, under the circumstances of the particular case, if such persons refuse to leave after notice and a reasonable time in which so to do. There is slight analogy in Ashworth, Adm'r, v. A. G. S. R. R. Co. (Ala. Sup.) 99 So. 191.

The rule is stated in 2 R. C. L. p. 557, § 36, as follows:

"The right of a person to protect his property necessarily includes the right to eject persons trespassing thereon. To permit all persons at their will to enter and to remain in the house or the close of another, would practically destroy the dominion of the owner over his property, and would render it almost useless as well as worthless. Such has never been the law, and so long as there is such a thing as individual ownership of property, it is not probable that it ever will be. However, in an action for assault and battery a plea of justification, based on the right of the defendant to eject a trespasser, is good only where it appears that the force used in effecting the ejection was no more than that which was reasonably necessary under the circumstances of the particular case."

The right of the occupant of a house or store-and other public or semipublic places-to control it and admit whom he pleases to enter...