Lipscomb v. Moore

• Decision Date: 16 November 1933
• Docket Number: 8 Div. 518.
• Parties: LIPSCOMB v MOORE.
• Court: Alabama Supreme Court

150 So. 907

227 Ala. 547

LIPSCOMB v MOORE.

8 Div. 518.

Supreme Court of Alabama

November 16, 1933

Appeal from Circuit Court, Morgan County; James E. Horton, Judge.

Action for malicious prosecution and false imprisonment by R. L Moore against D. F. Lipscomb. From a judgment for plaintiff defendant appeals.

Transferred from Court of Appeals.

Affirmed.

The following charges were given at plaintiff's request:

"1. I charge you that the plaintiff, R. L. Moore, was not guilty of the offense of trespass after warning with which he was charged by the defendant, D. F. Lipscomb.

"1 1/2. I charge you that R. L. Moore was not guilty of the offense of trespass after warning with which he was charged by D. F. Lipscomb, if you are reasonably satisfied from the evidence that Moore was in possession of the land before any notice from Lipscomb not to trespass on the land was served on him.

"3. If you are reasonably satisfied from the evidence that D. F. Lipscomb instituted a prosecution against R. L. Moore for the purpose of obtaining the possession of land of which Moore was in possession, then I charge you that the prosecution was maliciously instituted.

"4. If you are reasonably satisfied from the evidence that D. F. Lipscomb, at the time he instituted the prosecution against R. L. Moore, did not have knowledge of facts or circumstances such as would have justified a reasonable and cautious man in believing that R. L. Moore was guilty of the offense charged, then I charge you that he did not have probable cause for instituting the prosecution.

"5. If you are reasonably satisfied from the evidence that the motive of Lipscomb in instituting the prosecution against Moore was to injure Moore, or to secure a personal advantage to Lipscomb, then I charge you that the prosecution was maliciously instituted by Lipscomb.

"8. If you find for the plaintiff and are reasonably satisfied from the evidence that Lipscomb instituted a prosecution against Moore to serve a personal end, then I charge you that you may award punitive damages to the plaintiff."

The following requested charges were refused to defendant:

"A. The court charges you, gentlemen of the jury, that, if you are reasonably satisfied from the evidence in this case that the plaintiff went to jail for the purpose of increasing his damages against the defendant, when he could have made bond and stayed out of jail, the plaintiff would not be entitled to damages for being put in jail.

"1. The court charges the jury that if you believe from the evidence in this case that all the facts known to the defendant or which he could have ascertained by diligence were fully and truly made before a reputable, practicing, attorney, and the said attorney advised defendant that he could have plaintiff arrested for trespassing after warning and the defendant acted upon the advice of the said attorney, you should find for the defendant.

"4. The court charges the jury that an acquittal did not tend to show want of probable cause, because an acquittal is based on a reasonable doubt of defendant's guilt, whereas probable cause for preferring a charge is based upon a reasonable belief growing out of such information as may be available to the accuser at that time; that is, whether the accuser has a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious man in the belief that the person charged is guilty."

W. H. Long, of Decatur, for appellant.

A. J. Harris and Norman W. Harris, both of Decatur, for appellee.

KNIGHT Justice.

Action by R. L. Moore, appellee, instituted in the circuit court of Morgan county against D. F. Lipscomb, appellant here, to recover damages for malicious prosecution and false imprisonment. The suit resulted in verdict and judgment for plaintiff, and from that judgment the defendant prosecutes the present appeal.

It appears from the evidence in the cause that the plaintiff rented some land for a period of years, commencing with the year 1926, from one J. A. Kay; that this land adjoined lands owned by, and in the possession of, the appellant. At the time the plaintiff rented the lands adjoining the Lipscomb land, there was an old fence separating the lands rented by appellee from the lands of appellant. Shortly after Moore rented the lands, and entered into the possession of the same, it was agreed between Kay, the landlord of Moore, and Lipscomb, that a new fence should be erected between the two tracts of land; that Kay was to furnish the wire, Lipscomb the posts, and Moore was to do the work. Accordingly, Kay did furnish the wire, Lipscomb the posts, and Moore constructed the fence. It was quite a while after the fence was constructed that Lipscomb visited the place and discovered that Moore had placed the fence beyond the line of Kay's land, and had encroached some distance upon the lands of Lipscomb, "had cleared" some of it, and was cultivating it. It also appears, without dispute, that Lipscomb then warned the said Moore not to trespass upon any of his lands. This warning, given in 1927, was not observed, and thereafter Moore's landlord, Kay, paid Lipscomb $42.50 for the use or rent of the land by his tenant, Moore, for the year 1929. During the year 1930, Moore continued in possession of a part of the Lipscomb land, cultivating and growing a crop thereon, but without paying or agreeing to pay rent therefor. It also appears that on or about the 11th day of March, 1930, Lipscomb gave Moore a written notice in words as follows:

"Laceys Springs, Ala.

"R. L. Moore: You are hereby notified not to trespass on any lands I own or have under my control under penalty of the law.

"Witness my hand this 11th day of March, 1930.

"D. F. Lipscomb." On or about the 28th day of April, 1930, Lipscomb gave Moore a further written notice as follows: "You are hereby notified that your possessory interest has been terminated and demand for the possession of the following described land is hereby made upon you," then follows a description of the land. To these demands Moore made no response, but continued to hold the land. At the time these several notices were given, Moore had been in possession of the land for more than three years, cultivating a portion of it.

On the 28th day of May, 1930, Lipscomb made and filed with Thomas F. Russell, a justice of the peace of Morgan county, Ala., an affidavit in words as follows:

"State of Alabama, Morgan County.

"Before me, Thomas F. Russell, J. P., personally appears D. F. Lipscomb who, after being duly sworn, says that within sixty days before the making of this affidavit, and in Morgan County, Alabama, R. L. Moore did without legal cause or good excuse entered on the premises of D. F. Lipscomb, after having been warned within six months preceding not to do so against the peace and dignity of the State of Alabama."

On the same day, based upon said affidavit, the said justice issued to the sheriff a warrant of arrest for the said Moore, and this was thereafter executed by the sheriff by arresting Moore, and committing him to jail. Moore remained in jail from Sunday evening until the following Monday, when he made bond and was released from custody. When the case came up for hearing, the defendant waived preliminary examination, and demanded a grand jury investigation. Subsequently, the grand jury, upon investigation of the case, failed to indict the said Moore, and the case was thus ended, and this occurred before the present suit was instituted. There was never a trial or formal acquittal of Moore.

On the 23d day of January, 1931, the said Moore filed this suit against the said Lipscomb.

Numerous errors are assigned upon the record, but many of them have not been argued in brief of counsel.

It must be borne in mind that the specific charge, upon which Moore was caused to be arrested, was that he "without legal cause or good excuse, entered on the premises of D. F. Lipscomb, after having been warned within six months preceding not to do so."

Section 5554, Code, embraces two separate and distinct offenses under the common designation of trespass after warning; or, in other words, the offense of trespass after warning may be committed in two different and distinct ways, first, where the defendant "without legal cause or good excuse, enters into the dwelling house or on the premises of another, after having been warned, within six months preceding, not to do so"; and, second, where the defendant "having entered into the dwelling house or on the premises of another without having been warned within six months not to do so, and fails or refuses, without legal cause or good excuse, to immediately leave on being ordered or requested to do so by the person in possession, his agent or representative." Brunson v. State, 140 Ala. 201, 37 So. 197.

It will be observed that Lipscomb elected to charge Moore with the commission of the first offense denounced by the statute. The evidence was without dispute that Moore had entered upon the lands of Lipscomb long before any notice was given him, and at the time the notices were in fact given, he was still in possession of the land cultivating the same. Moore was confessedly not guilty of the first offense denounced by section 5554, with which Lipscomb had elected to prosecute him, and therefore the court committed no error in giving the plaintiff's written charges 1 and 1 1/2. Brunson v. State, supra; Watson v. State, 63 Ala. 23; Goldsmith v. State, 86 Ala. 55, 5 So. 480; McLeod v. McLeod, 73 Ala. 42; Matthews v. State, 81 Ala. 66, 1 So. 43.

It is insisted by appellant, with respect to charge 1 1/2, that if Lipscomb was in possession of the land immediately before Moore went on said land and Moore's possession was wrongful, ...