Lewis v. Dothan Drug Co.
| Decision Date | 20 December 1945 |
| Docket Number | 4 Div. 393. |
| Citation | 247 Ala. 279,24 So.2d 119 |
| Parties | LEWIS v. DOTHAN DRUG CO. et al. |
| Court | Alabama Supreme Court |
O S. Lewis, pro se.
J Robert Ramsey and T. E. Buntin, both of Dothan, for appellees.
On examination of defendant Bottoms, as a witness the following occurred:
Plaintiff objected and moved to exclude.
Plaintiff's objection to the question was overruled.
Being asked what he told his attorney, witness answered: 'I told him he was there when we took over the possession, and that Harvey went over the list of the tenants with me showing the amount of rent paid and whether it was in advance or at the end of the month and he stated at the time that they were all on a monthly basis with no contract except Albert Logue.'
Plaintiff objected to the statement 'on a monthly basis,' which objection was overruled.
The following requested charges were refused to plaintiff:
'5. I charge you, gentlemen of the jury, if you are reasonably satisfied from the evidence that at the time defendants acquired their rights to the offices involved in this suit the plaintiff was in the actual, open and exclusive possession thereof, then the defendants were charged as a matter of law with right of plaintiff thereto, and, if they failed to inform their attorney of the rights claimed by plaintiff to the offices, then they can not reply on any advice of counsel to prevent a recovery in this case.
'6. I charge you gentlemen of the jury, that if you are reasonably satisfied from the evidence in this case, that plaintiff was in the actual open possession of the offices at the time defendants acquired their rights under the lease contract, defendants were charged as a matter of law of the rights of plaintiff to said offices, and no advice of counsel to the contrary would give them probable cause to bring the suit complained of and set forth in the complaint, and, if with such knowledge they continued to prosecute said suit regardless of the rights of plaintiff; then the jury may consider such action in determining whether such was malicious, and if so, you should render judgment for the plaintiff for the damages suffered by such action.
'7. I charge you, gentlemen, that if you are reasonably satisfied from the evidence that plaintiff was in the actual, open and exclusive possession of the offices at the time defendants acquired their rights under a lease contract, defendants were charged as a matter of law of the rights of plaintiff to said offices, and no advice of counsel to the contrary would give them probable cause to bring the suit against plaintiff set forth in the complaint.
This appeal is by the plaintiff from a judgment in favor of the defendants in an action for malicious prosecution. The complaint consists of a single count, which avers that defendant maliciously and without probable cause brought suit for unlawful detainer against plaintiff in the Court of Common Pleas of Dothan, Ala., to recover possession of suite 1, on the second floor of the Rimson Building on West Main Street, in Dothan, Ala., occupied by the said O. S. Lewis, as a law office. That said cause proceeded to trial in said court, and there were verdict and judgment for the defendant in said cause, the plaintiff in this appeal. Thereafter, and within the time provided by law, defendant appealed said cause to the Circuit Court of Houston County, Ala. Plaintiff avers that while said appeal was pending in said court the defendants without notice to plaintiff filed a motion for a nonsuit therein, and on said motion, and without notice to the plaintiff, said court dismissed said cause out of said court, which said judgment is in full force and effect; these defendants being taxed with the costs, and said cause was thereby determined in favor of the plaintiff. The defendants pleaded the general issue.
The evidence in the case goes to show that while the Rimson Building was in the course of construction, in about the year 1928, to induce the plaintiff in this suit to become a tenant in said building upon its completion offer was made to have this suite on the second floor arranged for him and he was told that he could use the suite as long as he wanted it. Plaintiff entered into the occupancy of the suite in the year 1928 on a rental basis of $40 per month, and has continued in possession up until the trial of this case. The evidence further shows without dispute that during the depression in the early nineteen thirties by agreement between Mr. Rimson, the owner of the building, and plaintiff the rent was reduced to $30, payable monthly, and which plaintiff has continued to pay. During the year 1944, sometime prior to September 1st, the defendants, Dothan Drug Company, a partnership composed of Grady Watford, J. F. Bottoms, Jr., Mattie Lizzi Watford and Merle C. Bottoms, obtained from Rimson a lease of the entire building taking over the tenants located on the upper floors, having purchased the business on the lower floor, as the name indicates, a drug business. On September 1st, 1944, the defendants gave written notice to the plaintiff to the effect that his possessory interest in the offices was terminated effective ten days thereafter. The defendants then brought an action of unlawful detainer in the Court of Common Pleas of Dothan, Ala., to recover possession of said office suite. The case went to trial in the Common Pleas Court resulting in a judgment in favor of the defendant in that case, plaintiff in this action. From that judgment the plaintiffs in that suit, defendants here, appealed to the Circuit Court. Thereafter on January 23, 1945, pending the appeal in the Circuit Court, the plaintiffs in that case took a voluntary nonsuit and the costs were taxed against them. They thereafter filed another action in the Court of Common Pleas, which was pending at the time of trial of this case.
Before instituting the unlawful detainer suit the Dothan Drug Company sought and obtained the advice of a reputable attorney, and after stating fully the facts within their knowledge they employed the said attorney to ascertain whether or not said Lewis had a written lease convering said suite, and if not, to ascertain from him upon what facts he based his contention that his leasehold interest was not terminable, and said attorney investigated the record and ascertained that there was no lease on record,...
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