Luling v. Shepherd

• Decision Date: 27 November 1896
• Parties: LULING v. SHEPHERD. [1]
• Court: Alabama Supreme Court

21 So. 352

112 Ala. 588

LULING v. SHEPHERD. ^[1]

Supreme Court of Alabama

November 27, 1896

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action of forcible entry and unlawful detainer by F. A. Luling against Charles M. Shepherd, commenced in justice's court, and taken on appeal by plaintiff to the circuit court. One of defendant's pleas was that a former suit had been brought against defendant's wife for the forcible entry and unlawful detention of the same land, in which there was a judgment for defendant. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Gregory L. & H. T. Smith, for appellant.

L. H Faith, for appellee.

COLEMAN J.

This is an action of forcible entry and unlawful detainer, or of unlawful detainer. There are several questions presented in the record, which we deem it unnecessary to consider. The question which seems to have been a material point in the case on the trial was whether one person can successfully defend a forcible entry and unlawful detainer or peaceable entry and unlawful detainer of land when sued, upon the ground that his entry and detention is in the capacity of agent, and not in his own right. One guilty of a forcible entry or unlawful detainer is guilty of a tort. No principle of law is more general and better settled than that one guilty of a tort cannot justify on the ground that he was acting in the capacity of an agent, and not on his personal responsibility. It is often a question as to whether the principal is liable for the tortious act of an agent, but it has never been questioned that the agent was personally liable for his actual torts. The whole question is fully considered in the notes to Greenberg v. Lumber Co. (Wis.) 48 Am. St. Rep. 911 (63 N.W. 93); Mayer v Building Co., 104 Ala. 611, 16 So. 620; Perminter v Kelly, 18 Ala. 716, 28 Lawy. Rep. Ann. 433. The instructions on this question given by the trial court are not in accordance with the law, and should not have been given. We are not sufficiently advised by the abstract to enable us to determine whether the unlawful detainer suit instituted against Kate A. Shepherd, wife of the present defendant, was defended upon the ground that, if there had been a forcible entry upon the lot, and there was an unlawful detainer, it was the act wholly of the husband, C. M. Shepherd, of which the then defendant, Kate M. Shepherd, had no knowledge, and was in no...