Haygood v. Boothby Realty Co.

• Decision Date: 30 March 1961
• Docket Number: 6 Div. 587
• Citation: 128 So.2d 497,272 Ala. 95
• Parties: Carrie M. HAYGOOD v. BOOTHBY REALTY COMPANY.
• Court: Alabama Supreme Court

Page 497

128 So.2d 497

272 Ala. 95

Carrie M. HAYGOOD v. BOOTHBY REALTY COMPANY.

6 Div. 587.

Supreme Court of Alabama.

March 30, 1961.

Plaintiff's amended replication is as follows: 'That the judgment rendered by the Municipal Court of Birmingham in favor of Boothby Realty Company, a corporation, against Carrie M. Haygood, was obtained by fraud or perjury or other improper means in that, on the trial of said cause in the said Municipal Court of Birmingham, Mr. James H. Roberts, Vice President of Boothby Realty Company, a Corporation, who had personal knowledge of all mattters with respect to the release of Mrs. Carrie M. Haygood from her obligation on her lease on Apartment No. 7 in the Lindell Apartments, and the re-rental of said apartment to Mrs. Bernice R. Webb, testified that Mrs. Carrie M. Haygood had promised him in a telephone conversation to move from said apartment several days prior to March 21, 1956, even though she was to pay rent on said apartment through March 21, 1956, in order that said apartment could be redecorated for the occupancy of the new tenant, Mrs. Bernice R. Webb, who had been promised and expected to obtain possession of the said apartment on March 22, 1956, in a redecorated condition and that Mrs.Haygood breached her said oral agreement by failing or refusing to vacate said apartment several days prior to March 21, 1956, and that, by reason of her breach of said oral agreement, Boothby Realty Company was not able to redecorate the said apartment on or before March 22, 1956, for the occupancy of said apartment by Mrs. Webb and that, as a consequence of said breach of the said oral agreement by Mrs. Haygood, Boothby Realty Company was compelled to cancel the lease entered into by Mrs. Bernice R. Webb and to refund the rent she had paid on said apartment from the 22nd day of March, 1956, to the first day of Aprial, 1956, when, as a matter of fact, no such agreement had been made on the telephone or otherwise between Mrs. Carrie M. Haygood and Mr. James H. Roberts and that the new tenant, Mrs. Bernice R. Webb, did not expect the said apartment to be redecorated before March 21, 1956, the date that Mrs. Carrie M. Haygood moved from said apartment, but to the contrary, the said Mrs. Bernice R. Webb had paid the rent on said apartment from March 22 through March 31, 1956, for her own convenience in having the said apartment redecorated and in making alterations on curtains to fit the windows in said apartment and in doing other things to the said apartment to put it in the condition she wanted it before beginning occupancy of said apartment on or before April 1, 1956. That Mrs. Bernice R. Webb did not testify in the trial held in the Municipal Court of Birmingham in which a judgment was rendered by said Court against Mrs. Carrie M. Haygood in favor of Boothby Realty Company, a Corporation, but that the said Mrs. Bernice R. Webb has made a deposition under oath on March 2, 1960, in the City of Louisville, Kentucky, where she now resides with her husband, whom she has married since March of 1956 and whose name is Virgil Paul Brewington, that she was living in another apartment and had a lease on said apartment which did not expire until March 31, 1956, and that the period of time between March 22, and March 31, on which she paid rent on Apartment No. 7 in the Lindell Apartments was for her own convenience to get the apartment in the condition she wanted it before moving her furniture into it and that the last time she went to Apartment 7 in the Lindell Apartments a day or two before April 1, 1956, that the blinds were all down in the middle of the floor and that Boothby Realty Company had not installed a stove in said apartment and that, as a consequence, she was disgusted and called the rental agent who handled the apartment she was then occupying and asked him if he would like to have her as a tenant for another year provided he would redecorate the apartment for her and that she remained where she was instead of moving into Apartment 7 in the Lindell Apartments. And she further stated that she complained to Boothby Realty Company and that they released her from the said lease and refunded her money because she could not move when she wanted to or had planned to and had paid for the time in which they were to redecorate the said apartment for her. And plaintiff says that, at the time Mr. James H. Roberts testified in the case in the said Municipal Court of Birmingham, he knew that Mrs. Haygood had not defaulted on any agreement made between her and Boothby Realty Company with respect to delivering possession of the said apartment No. 7 in Lindell Apartments or with respect to the payment of rent on said apartment and he also knew that he had agreed to let Mrs. Bernice R. Webb cancel the lease on the said apartment for other reasons.'

J. Robt. Huie and J. Terry Huffstutler, Birmingham, for appellant.

Wm. M. Acker, Jr., Smyer, White, Reid & Acker, Birmingham, for appellee. STAKELTY, Justice.

Carrie M. Haygood (appellant) brought suit against Boothby Realty Company, a corporation (appellee), for maliciously and without probable cause therefor causing the plaintiff to be prosecuted in a civil suit upon a charge of nonpayment of rent under a lease agreement. On May 15, 1958, appellant recovered of the appellee the sum of $5,000 as damages by a jury verdict. On motion by appellee's counsel, the trial court set the judgment aside and ordered a new trial.

On September 23, 1958, the case was tried again and the appellant was awarded damages in the amount of $4,500 by another jury.

On January 12, 1959, the court ordered a remittitur reducing the judgment from $4,500 to $2,000. A remittitur was filed by counsel for appellant. Appellee, Boothby Realty Company, appealed from the judgment entered by the court after the remittitur was filed. The case is reported as Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So.2d 555.

This court overruled its holding in the case of Penney v. Warren, 217 Ala. 120, 123, 115 So. 16, 18. In that case this court held:

'* * * that where there is an appeal from a primary and inferior court to a higher court, and a trial de novo on the issues of fact, with judgment on the merits of the case in favor of the appealing party, the primary judgment loses its value as evidence of the existence of probable cause. * * *'

This court in overruling its holding in the case of Penney v. Warren, supra, said:

'We feel strongly that a litigant should be entitled to have his rights determined in a court of law without risk of being sued and having to respond in damages, for seeking unsuccessfully to enforce his rights, and we think the better rule is that unless a judgment or decree in prior civil proceedings against the malicious prosecution plaintiff was obtained by fraud, perjury or other improper means, the judgment or decree establishes or shows conclusively the existence of probable cause for bringing the former action even though it was subsequently reversed or set aside, anything in Penney v. Warren, 217 Ala. 120, 115 So. 16 to the contrary notwithstanding. * * *' 269 Ala. 554, 114 So.2d 560.

The case was reversed and remanded to the Circuit Court of Jefferson County for a new trial. Upon a new trial the defendant, Boothby Realty Company, whthdrew its plea in short by consent and with leave of the court first had and obtained, filed the following pleas:

'One

'The defendant, for answer to the complaint, says that it is not guilty of the matters therein alleged.

'Two

'The defendant, for answer to the complaint, says as follows:

'The civil suit here complained of, and which defendant prosecuted against plaintiff, was originally filed by defendant (there plaintiff) in the Municipal Court of Birmingham, a court of competent jurisdiction over defendant's claim against plaintiff for non-payment of rent under a lease agreement; and on, to-wit, May 29, 1956, the said Municipal Court of Birmingham, after a trial on the merits, entered a judgment in said civil suit in favor of defendant (there plaintiff) and against plaintiff (there defendant) in the amount of $60.91 which was the entire amount sued for. Only thereafter, on a trial de novo upon plaintiff's (there defendant's) appeal to the Circuit Court of Jefferson County was a verdict and judgment rendered in favor of plaintiff (there defendant).

'Three

'The defendant, for answer to the complaint, says as follows:

'Before the defendant instituted the civil suit here complained of, Mr. James H. Roberts, the agent of defendant who had handled the complained of transaction for defendant with plaintiff and who was most familiar with its details, disclosed to Mr. Rogers H. Bite, an attorney-at-law experienced in rent collections and actively practicing in Birmingham, Alabama, all of the material facts within defendant's knowledge surrounding the claim of non-payment of rent under a lease agreement between defendant and plaintiff and the said Mr. Bite advised defendant that the said civil suit should be instituted.'

Carrie M. Haygood (appellant) did not demur to either of the aforesaid pleas, but filed a replication to each plea of the defendant as follows:

'1. That she joins issue thereon.

'2. For special replication to plea 'Two', she says: That the judgment obtained by Boothby Realty Company, a Corporation, against Carrie M. Haygood, in the Municipal Court of Birmingham, was obtained by fraud or perjury or by some other improper means.'

The demurrer of Boothby Realty Company filed to the plaintiff's special replication to 'plea Two' was sustained by the court.

Carrie M. Haygood (appellant) then filed an amended replication to defendant's plea Two. This replication is lengthy and we shall not undertake to set it out. It will appear in the report of the case. It attempts to show that the judgment rendered by the Municipal Court of Birmingham in favor of Bootyby Realty Company, a corporation, against Carrie...