Miller v. McGuire

• Decision Date: 28 November 1918
• Docket Number: 1 Div. 51
• Citation: 80 So. 433,202 Ala. 351
• Parties: MILLER v. McGUIRE.
• Court: Alabama Supreme Court

80 So. 433

202 Ala. 351

MILLER v. McGUIRE.

1 Div. 51

Supreme Court of Alabama

November 28, 1918

Appeal from Circuit Court, Baldwin County; A.E. Gamble, Judge.

Action by Minnie S. McGuire, a grown woman, against E.G. Miller, in trespass in statutory form for an assault and battery committed upon plaintiff by defendant. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450. Reversed and remanded.

The pleas were the general issue, molliter manus imposuit in protection of defendant's premises from the trespass of plaintiff. Defendant was the proprietor of a dance hall to which he invited and admitted men and women generally who were of good charactor, and who were not otherwise offensive but reserved the right to exclude any one at his discretion. He had informed plaintiff that she could not attend his entertainments, and warned her not to enter his place. A few days later plaintiff went to the place and entered the hall while an entertainment was going on, and when she had gotten a few feet within the door defendant approached her, grasped her by the arm, and led her to the door. According to plaintiff's testimony this was done without preliminary address to her, and was rude in manner and touch, and kicked her foot loose as she was holding with it at the door. Defendant's testimony was to the effect that he first told her she would have to go out, and then took hold of her arm and led her out as easily as he could after she had refused to go. Defendant requested the following charges which were refused by the court:

(1) Affirmative charge.

(A) Plaintiff cannot recover for suffering or injuries sustained on account of defendant striking or kicking her ankle.

(B) Plaintiff cannot recover for physical suffering in this case, or for physical injuries sustained by her.

(C) Plaintiff cannot recover for physical pain caused by the assault and battery in this case.

(D) Defendant had a right to refuse admission to any one he cared to, and if he did not want plaintiff to enter said dance hall he had a perfect right to refuse admission to her and if you are reasonably satisfied from the evidence that prior to August 26, 1915, defendant notified plaintiff to stay away from his dance hall, but notwithstanding said notice plaintiff entered the hall after being so notified defendant could eject her, and if you are further reasonably satisfied from the evidence that defendant did not use excessive force in ejecting her from said dance hall defendant is not liable.

There was verdict and judgment for $250.

Webb, McAlpine & Grove, of Mobile, for appellant.

John E. Mitchell, of Mobile, for appellee.

SOMERVILLE J.

"In order to justify the use of force in ejecting a trespasser from defendant's premises, where he entered peaceably, it should be shown that defendant first requested the trespasser to depart and that he refused after being allowed a reasonable time to do so; but where the trespasser uses actual force in effecting an entrance, then no request is necessary before forcibly ejecting him." 5 Corp.Jur. 634, § 29. This text is fully supported by the cases. Hannabalson v. Sessions (Iowa) 93 Am.St.Rep. 250, note, 256. In our own case of Motes v. Bates, 74 Ala. 374, 378,

this qualification of the right to eject is expressly recognized.

In the instant case defendant's testimony that he requested plaintiff to leave his premises, and that she refused to do so, before he used any forec, is contradicted by plaintiff's testimony. It is obvious, therefore, that charge "D," which would have justified defendant's use of force without first requesting plaintiff to depart, was properly...