Hart v. Jones

• Decision Date: 04 November 1915
• Docket Number: 7 Div. 336
• Citation: 14 Ala.App. 327,70 So. 206
• Parties: HART et al. v. JONES.
• Court: Alabama Court of Appeals

70 So. 206

14 Ala.App. 327

HART et al. v. JONES.

7 Div. 336

Court of Appeals of Alabama

November 4, 1915

Rehearing Denied Dec. 8, 1915

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by W.N. Jones against Loui Hart and the Bellevue Highlands Company for an assault and battery. Judgment for plaintiff and defendants appeal. Affirmed.

Goodhue & Brindley, of Gadsden, for appellants.

McCord & Davis, of Gadsden, for appellee.

BROWN J.

One who is rightfully in the exclusive occupancy of realty, in order to protect his possession, has an undoubted right to eject trespassers who intrude thereon; but this right is not an unqualified right. In ejecting such trespasser, he must use no more force than is reasonably necessary (3 Cyc. 1071 [3 B, II]; Highland Ave. & Belt R.R. Co. v. Robinson, 125 Ala. 489, 28 So. 28); and, if a breach of the peace ensues, resulting in an assault and battery, and the defense is invoked that the defendant committed the assault in ejecting a trespasser from his premises, he assumes the burden of showing that he used no more force than was reasonably necessary, and that he did not unnecessarily hurt or wound the wrongdoer, and the defense is not available if he who invokes it was at fault in bringing on the affray. Watrous v. Steel, 4 Vt. 629, 24 Am.Dec. 648; Wilkerson v. State, 68 So. 475; Hendrix v. State, 50 Ala. 148; Ward v State, 28 Ala. 53.

This defense is in justification, and, to be available in a civil action for assault and battery, must be specially pleaded. Watrous v. Steel, supra; MitcheIl v. Gambill, 140 Ala. 316, 37 South, 290; Barlow v. Hamilton, 151 Ala. 634, 44 So. 657; Morris v. McClellan, 154 Ala. 639, 45 So. 641, 16 Ann.Cas. 305; Morris v. McClellan, 169 Ala. 90, 53 So. 155.

If it be conceded that the place where the difficulty occurred was in a public road, that the defendants owned the land on both sides of the road, and the fee in the soil under the road, that Jones, by stopping his wagon in the road for the purpose of vending his wares, became a trespasser, as some authorities hold (State v. Buckner, 61 N.C. 558, 98 Am.Dec. 83; Huffman v. State, 21 Ind.App. 450; Adams v. Rivers, 11 Barb. [ N.Y.] 390; McDonald v. Newark, 42 N.J.Eq. 138, 7 A. 855), yet the defendants' possession of the road was not exclusive, and their right in the fee to the soil on which the road was located was not such as to justify the use of force in protecting it. The use of the road in this manner did not constitute an additional burden on the fee, but, at most, a nuisance. In such cases what was said in Hendrix v. State, supra, is appropriate:

"The public peace is a superior consideration to any one man's private property; and, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature."

If a public highway is obstructed, with injurious consequences, a nuisance results, and the law affords a remedy to one injuriously affected. Jones v. Bright, 140 Ala. 268, 37 So. 79; Stewart v. Connolly, 123 Ala. 179, 27 So. 303; Stetson v. Faxon, 19 Pick. (Mass.) 147, 31 Am.Dec. 123, and note; Elliott on Roads and Streets (2d Ed.) §§ 665-669.

The fact of the assault by Hart on the plaintiff is not disputed, in fact, is admitted; and, the only plea in the case being the general issue "not guilty," the plaintiff was entitled to recover against Hart at least nominal damages, and such actual and compensatory damages as proximately resulted from the wrong.

But appellants insist that the appellee failed in his proof as against the Bellevue Highlands Company, and the affirmative charge should have been given in its behalf, because: (1) All the counts involved the charge that the corporation directed and ordered its servants and agents to commit the assault and battery, and there is not even the slightest tendency in the evidence to show any corporate action on its part; and (2) if, under the pleadings, it was not incumbent on the plaintiff to show that the injury was the result of force applied directly by the corporation itself, as distinguished from force applied by its agent or servant within the scope of his authority, yet the evidence has no tendency to show that any agent or servant of the corporation, acting within the scope of authority, applied force resulting in injury to appellee.

To these contentions, after a consideration in banc of the evidence in the record, we cannot agree. As has often been

held, a corporation, of necessity, can only act through its officers, agent, servants, or employés (L. & N.R.R. Co v. Dawson, 68 So. 674; Sullivan v. Sullivan Timber Company, 103 Ala. 372, 15 So. 941, 25 L.R.A. 543; Beard v. Union & American Pub. Co., 71 Ala. 60); and the statute (Code, § 5303)...