Rhodes v. McWilson, 41

• Court: Supreme Court of Alabama
• Writing for the Court: SOMERVILLE, J.
• Citation: 69 So. 69,192 Ala. 675
• Docket Number: 41
• Decision Date: 20 May 1915
• Parties: RHODES v. McWILSON.

69 So. 69

192 Ala. 675

RHODES
v.
McWILSON.

No. 41

Supreme Court of Alabama

May 20, 1915

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by Thomas McWilson against J. Turner Rhodes for a false imprisonment. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Transferred from the Court of Appeals under section 6, Acts 1911, p. 45.

The complaint is in four counts, two of which charge unlawful arrest and imprisonment, and two charging the same wrong with malice and without probable cause. Ten special pleas in justification were filed, to each of which a demurrer was interposed and sustained, and the case was tried on the general issue only.

In a certain block in Birmingham lots 13, 14, and 15 are in a tier, 13 being on the south side. Plaintiff owned 13 and the south half of 14, and defendant owned the north half of 14 and all of 15. Defendant's predecessor in title, intending to build a small house on his own land, mistakenly built it so that the entire house was on plaintiff's land, excepting a small triangular section on the north side about four feet in width at its large end and tapering to nothing at the other end. Before the discovery of the mistake defendant had a tenant in the actual occupancy of the house. When this tenant left the premises were vacant, and plaintiff took actual possession of the house by moving a cot therein and sleeping there at night. When defendant heard of this, he went to the house and moved the cot out on the front porch and posted notices on the premises forbidding trespassing. About this time, and after plaintiff had also posted warning against trespassing, defendant leased the house to another tenant, who began to move some of his things in just about the day that plaintiff was arrested. Defendant went to the house and threw out plaintiff's cot and tore down his notice. This was the day of plaintiff's arrest, and was the only occasion upon which defendant saw and talked to plaintiff about the house. Plaintiff was arrested on his own property near the house. A policeman who made the arrest says he did it at the request of defendant on a charge of trespassing. Defendant testified:

"I turned to McWilson and said to him, 'If you go into the house again, I will have you arrested.' He replied, 'I am going in there again; you can have me arrested. I am acting on the instructions of my lawyer. Then after he said that he would go in there again, one of the officers asked me if I wanted him arrested, and I said 'Yes; if he is going to be persistent in going on this property, why I want him arrested.' Then they arrested him and took him."

Plaintiff went into the house after he had seen defendant's warning notice.

The trial judge instructed the jury to find for plaintiff if they believed the evidence, and there was verdict and judgment for plaintiff in the sum of $12.50.

Horace C. Wilkinson, of Birmingham, for appellant.

Francis M. Lowe, of Birmingham, for appellee.

SOMERVILLE, J.

The cause being tried under plea of the general issue only, and the action being in trespass, there could be no justification of the arrest complained of; and the only proper inquiries were as to defendant's responsibility for the arrest, and, if responsible, the amount of damages to be assessed. Womack v. Bird, 51 Ala. 504; Lunsford v. Walker, 93 Ala. 36, 8 So. 386; 19 Cyc. 360.

The undisputed evidence shows that plaintiff entered and took possession of the house in question at a time when neither defendant nor any of his tenants was in its actual possession. He was the owner of the premises, and had a right to enter, in spite of defendant's posted warning not to do so, if he did not violate the possession of an actual occupant.

Thereafter the "scrambling possession" of defendant or his tenants, if any of them came on the premises asserting a hostile right, could not effect an ouster of plaintiff so as to render his continued occupancy and entries, though in the face of the posted warning, a violation of the criminal statute (Code, § 7827). It is, of course, well settled by our decisions, in accordance with the policy of the statute, that the defendant's superior title is no...