Cox v. Stuart

• Decision Date: 08 November 1934
• Docket Number: 7 Div. 272.
• Citation: 229 Ala. 409,157 So. 460
• Parties: COX v. STUART.
• Court: Alabama Supreme Court

157 So. 460

229 Ala. 409

COX v. STUART.

7 Div. 272.

Supreme Court of Alabama

November 8, 1934

Certiorari to Court of Appeals.

Action in trespass by Ruby Stuart against W. T. Cox. A judgment for plaintiff was reversed and the cause remanded by the Court of Appeals (157 So. 458), and plaintiff petitions for a writ of certiorari to review and revise such court's judgment and decision.

Writ denied.

Miller & Miller, of Gadsden, for the motion.

Inzer Davis & Martin and McCord & McCord, all of Gadsden, opposed.

GARDNER Justice.

The complaint is in Code form for trespass in taking goods (section 9531, Code 1923, form 25) and is sufficient. Wilkinson v. Searcy, 76 Ala. 176; Thornton v Cochran, 51 Ala. 415; Higdon v. Garrett, 5 Ala App. 467, 59 So. 309. And, indeed, under such a complaint, punitive damages are recoverable, if warranted by the proof, though not specially claimed therein. Wilkinson v. Searcy, supra; Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754.

This Code form seeks damages of the defendant for "wrongfully taking" the goods therein described. As we understand the opinion of the Court of Appeals in the instant case, interpreting and following the former decision of Singer Sewing Machine Co. v. Hayes, 22 Ala. App. 250, 114 So. 420, the holding is that under the form of complaint, recovery cannot be had for a taking of goods by one who has the legal title thereto, and the right to immediate possession, though unlawful force was used in the taking, but that specific averments as to such unlawful force should appear in the complaint.

In this holding we find ourselves unable to agree. The wrongful taking charged in the complaint embraces, in such a case, unlawful force in the taking and no other averments are necessary. Indeed, under such circumstances, it appears the unlawful force forms the essential element of the trespass, as disclosed by a consideration of our decisions.

In Street v. Sinclair, 71 Ala. 110, the court considered the right of a mortgagee to enter the premises of the mortgagor and carry away certain property therein described. There was default, and the mortgage expressly authorized the mortgagee to take possession of the mortgaged property. The court said: "If it was necessary therefore, to enter the premises of the mortgagor in order to reduce the property to possession and execute the power of sale, this the mortgagee, or his agent, could do in a peaceable and lawful manner without becoming a trespasser, unless a distinction could be made where he had been forbidden originally to enter the premises under reasonable apprehension of a breach of the peace. But on this point we express no opinion. * * * The seizure of the property by the mortgagee, in such a case, should of course be effected without force or violence. The same rule must govern as in cases of recaption. It must not be perpetrated 'in a riotous manner, or attended with a breach of the peace.' 3 Black. Com. 4; Bobb v. Bosworth, Litt. Sel. Cas. [Ky.] 81, 12 Am. Dec. 273. Subject to this limitation, the owner of personal property, wrongfully with-held from him, may have redress by his own act without resorting to the delay of litigation. But he proceeds at his own...