Crews & Green v. Parker

• Decision Date: 15 April 1915
• Docket Number: 11
• Citation: 192 Ala. 383,68 So. 287
• Court: Alabama Supreme Court
• Parties: CREWS & GREEN v. PARKER.

68 So. 287

192 Ala. 383

CREWS & GREEN v. PARKER.

No. 11

Supreme Court of Alabama

April 15, 1915

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by R.P. Parker against the firm of Crews & Green and its members. Judgment for plaintiff, and defendants appeal. Affirmed.

Tansferred from Court of Appeals under section 6, Acts 1911, p. 450.

The complaint alleges, in effect, that defendants or their agents or employés, acting within the line and scope of their employment, entered the place of business of plaintiff of Birmingham and took therefrom certain personal property, and plaintiff avers that as a proximate result of said wrong, he has been deprived of the possession of such property; he has been greatly damaged in his business; he has been caused to suffer much discomfort, mental pain and anguish, and was greatly distressed. The first count alleges that the property was taken against his will and over his protest, and in a rude and rough manner. The second count alleged the taking after a warning not to molest said property in any manner against the will and protest of plaintiff, and by the use of enough force to take and carry it away. The other counts allege the wrongful, willful, and wanton taking thereof with force and against plaintiff's will. The pleas set up the usual installment form of contract, and that the property was purchased thereunder, and that a certain amount was due thereon, that demand was made for the return of property etc. The following are charges 3 and 10:

"(3) I charge you, gentlemen, that the power to take possession of the property embraced in the complaint and described in the contract is a power coupled with an interest, and created a license in favor of defendant, which became irrevocable without their consent."

"(10) If you believe from the evidence that there was a default in the payment, under the contract, of the contract in this cause, defendant had a right to enter the premises of plaintiff and take possession of said property against his will and protest, if nothing more was said or done than a simple protest on the part of plaintiff."

J.S Kennedy, of Birmingham, for appellants.

W.T Stewart, of Birmingham, for appellee.

McCLELLAN J.

The plaintiff, the appellee, was accorded the judgment from which the defendants, appellants, appeal on an asserted right of action for a trespass committed in the taking of personal property then in use by the plaintiff in his business of a restaurateur. The property alleged to have been taken consisted of an ice box, a table, and 11 chairs.

Complaint is made of the action of the court in declining to strike from several of the counts claims for special damages of these characters, viz., damage to the plaintiff's business, and mental pain and anguish.

A trespass committed in the taking of personal property used by the owner in a lawful business enterprise may entitle him to recover special damage, proximately resulting from the wrong in the suspension of such business for a definite period beyond a mere temporary disturbance. Sparks v. McCreary, 156 Ala. 382, 47 So. 332, 22 L.R.A. (N.S.) 1224; Smith v. Dinkelspiel, 91 Ala. 528, 8 So. 490. On this complaint it cannot be affirmed as a matter of law that the indicated possible element of damage to the plaintiffs business was not recoverable in this action.

Where the trespass to property is aggravated, or evinces an intentional violation of, or disregard for, the plaintiff's rights, mental distress proximately consequent upon the thus committed trespass may be an element of damage for which the plaintiff is entitled to compensation. 1 Suth. on Damages,§ 95, p. 278; White v. Dresser, 135 Mass. 150, 46 Am.Rep. 454; Mattingly v. Houston, 167 Ala. 167, 52 So. 78; 38 Cyc. 1137.

On the complaint under view, it cannot be affirmed as a matter of law that the special circumstances averred do not make a case, under the doctrine just stated, wherein mental distress or disturbance may become an element of recoverable damages. Hence the motion to strike that feature of the claim for special damages was overruled without error.

The question of prime importance was whether the plaintiff had paid the defendants in full for the property. The title was retained by them until the purchase price was paid; and the contract affirmed their right to retake the property upon default made. The difference between them was the matter of a $5 claimed balance on a $30 contract. In pleas 3, 4, and 5 the defendants sought to avail of their right, as upon an asserted default in...