Ramos v. Fell

• Decision Date: 30 March 1961
• Docket Number: 1 Div. 871
• Citation: 128 So.2d 481,272 Ala. 53
• Parties: Joe RAMOS v. Oscar FELL.
• Court: Alabama Supreme Court

Page 481

128 So.2d 481

272 Ala. 53

Joe RAMOS v. Oscar FELL.

1 Div. 871.

Supreme Court of Alabama.

March 30, 1961.

Collins, Galloway & Murphy, Mobile, for appellant.

Harry Seale, Mobile, for appellee.

The amended complaint is as follows:

'The Plaintiff claims fo the Defendant the sum of Five Thousand and No/100 ($5000.00) Dollars as damages for that heretofore and on, to-wit, July 25, 1958, the Defendant acting by and through himself or his agent trespassed on the landing dock duly leased by the Plaintiff, which dock extends northwardly into Dauphin Bay from the Standard Oil Filling Station at the Marina on the north side of Dauphin Island a short distance eastwardly from the Dauphin Island Bridge Road, which docking area belonged to or was in the possession of the Plaintiff, and for the Defendant docking a steel-hulled inboard boat named 'The Pastime' in such docking area; and as a direct and proximate result of such trespass by the Defendant, decking bits were torn from the boat of the Plaintiff, flooring of the decks was torn up, seams were opened in the Plaintiff's boat, the Plaintiff lost the use of his boat for charter parties during the Deep Sea Fishing Rodeo, and he was put to expense in and about the repairing of his boat, his boat was otherwise damaged than as stated above; and the Plaintiff also claims punitive damages for the trespass.' (The matter added by amendment is italicized.)

LAWSON, Justice.

Oscar Fell brought this suit in the Circuit Court of Mobile County against Joe Ramos. Fell recovered a judgment against Ramos for $2,500. Ramos has appealed.

The case went to the jury on Fell's amended complaint, which contains one count, and the defendant's plea of not guilty. The amended complaint is set out in the report of the case.

The original complaint was in trespass quare clausum fregit. It was in substantial compliance with Form 28, § 223, Title 7, Code 1940. The amendment added averments to the effect that if the defendant did not himself trespass 'on the landing dock duly leased by the plaintiff,' he committed the claimed trespass by and through his agent. Such added averments did not change the complaint to trespass on the case. The wrong thus averred is the wrong of the defendant himself as distinguished from the wrong of the agent. Southern Ry. Co. v. Sanford, 262 Ala. 5, 76 So.2d 164, and cases cited, including City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389.

Ramos asserts that the judgment should be reversed because of the trial court's refusal to give the affirmative instructions which he requested in writing.

Where we are called upon to review the action of the trial court in refusing an affirmative instruction to a defendant, we must review the evidence in the light most favorable to the plaintiff, and if there is a scintilla to support the complaint, the trial court's action in refusing the charge must be affirmed. Kress & Co. v. Thompson, 267 Ala. 566, 103 So.2d 171, and cases cited.

The evidence, when viewed in the light most favorable to the plaintiff, is substantially as follows:

Plaintiff Fell was the owner of a boat which he planned to charter to a fishing party during the 1958 Alabama Deep Sea Rodeo. He wanted a place to moor his boat at Dauphin Island and to that end he contacted L. W. Hager, who was the manager of a part of a dock on that island. The dock was owned or operated by the Doran Company. Fell secured from Hager as Doran's agent the following writing:

'7-25-58

'I Doran Co of Ala

'Rented to Oscar Fell--north end east side of Dock--in amount of nine dollars--from 7-25 6 a. m. till 7-28-58 6 a. m.

'L W Hager

'Doran Co of Ala.'

According to Fell, he acted not only for himself but for another boat owner, F. W. Waltman, Jr., who paid Fell one half of the costs of the docking area, that is, the 'north end east side of Dock.' Waltman stated that he was present when Fell negotiated with Hager.

The 1958 Rodeo began on the morning of July 25th. At about 4:00 on the afternoon of that day the Fell and Waltman boats were brought out of the Gulf for the purpose of mooring them in the rented docking space. That space was not large enough for Fell and Waltman to moor their boats one behind the other. They planned to place one boat outboard or outside of the boat to be moored next to the dock.

When they arrived at the dock Fell and Waltman saw a boat moored in the rented docking space. They secured their boats to the boat which was so moored and went in search of the owner or operator of that boat. Inquiries disclosed that the boat was owned by Joe Ramos, but he could not be located. According to Fell, he saw Ramos on his boat shortly before the Fell and Waltman boats reached the dock. Ramos denied that he moored the boat at the dock but admitted it was moored by his agent, Landry. Landry testified that he moored the boat at the dock in accordance with authorization given him by Ramos.

Fell and Waltman wanted to get their boats moored to the dock in order to connect the electric lines to the electrical outlets on the dock. They removed the Ramos boat and moored Fell's boat next to the dock. They moored the Waltman boat outboard the Fell boat and they moored the Ramos boat outboard the Waltman boat. Lines from the Ramos boat were tied to the bits and cleats on the decks of their boats by Fell and Waltman.

Within a short time after the boats were placed as described above, a severe storm hit the dock and surrounding area. Efforts to hold the Ramos boat off the Waltman boat were unavailing. When the Ramos boat was torn from its mooring the bits and cleats of the Fell and Waltman boats, to which lines from the Ramos boat had been tied, were pulled from the decks. Fell and Waltman, with the assistance of others, were successful in getting the Ramos boat back in place. Later the anchor line from the Ramos boat was carried across the Waltman and Fell boats by Waltman and Fell and tied around a piling on the dock.

As the high wind continued, the Fell boat was battered against the side of the dock and the anchor line from the Ramos boat struck the cabin of the Fell boat with such force and rapidity as to do considerable damage to the cabin. The Fell boat was severely damaged in other respects.

A designated area on the dock was assigned to Fell for his use. This, of course, included the right to bring his boat alongside that area for the purpose of mooring his boat. Fell had the right to exclusive possession of the area so designated against all the world, including the owner or operator of the dock. Fell was a lessee, not a licensee. Lewis v. Ebersole, 244 Ala. 200, 12 So.2d 543; Holt v. City of Montgomery, 212 Ala. 235, 102 So. 49.

Disturbance of possession is the basis for an action in trespass quare clausum fregit. Louisville & N. R. Co. v. Higginbotham, 153 Ala. 334, 44 So. 872; Kay v. Adams, 223 Ala. 33, 134 So. 628; Frost v. Johnson, 256 Ala. 383, 54 So.2d 897.

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