Schwabacher v. Herring

• Decision Date: 03 October 1950
• Docket Number: 6 Div. 891
• Citation: 48 So.2d 574,35 Ala.App. 496
• Parties: SCHWABACHER v. HERRING et al.
• Court: Alabama Court of Appeals

Page 574

48 So.2d 574

35 Ala.App. 496

SCHWABACHER v. HERRING et al.

6 Div. 891.

Court of Appeals of Alabama.

Oct. 3, 1950.

Rehearing Denied Oct. 31, 1950.

S. P. Keith, Jr., of Birmingham, for appellant.

Lipscomb & Brobston, of Bessemer, for appellees.

HARWOOD, Judge.

This is an appeal from separate verdicts and judgments in favor of the plaintiffs below in a suit for malicious prosecution. Each plaintiff was awarded damages in the amount of $250.00.

The defendant's respective motions for new trials being overruled, he perfected his appeals to this court.

By stipulation the cases were heard together, and it was agreed that one transcript be sufficient upon appeal.

Separate pleadings were filed in each case. These pleadings are identical, except for names, and will hereinafter be referred to in the singular, though our conclusions are equally applicable to each respective case.

The complaint alleges that the appellant maliciously and without probable cause, for the purpose of damaging the appellee, procured a complaint to be filed against him in the Bessemer Civil and Misdemeanors Court of Bessemer, Jefferson County, Alabama, on the 19th day of July, 1948, and that the defendant (appellant here) wrongfully, maliciously and without probable cause procured the issuance of process against the plaintiff (appellee here) requiring him to answer the complaint, and maliciously and without probable cause and with intent to injure him, procured an attorney, or attorneys, to file the complaint against him, well knowing that he had no cause of action against the plaintiff (appellee); that in said complaint it was alleged falsely, wrongfully, maliciously and without probable cause, among other things, that plaintiff (appellee) unlawfully retained possession of certain premises in Bessemer. That the purpose of your defendant (appellant) in procuring the filing of said suit against the appellee, and in the prosecution thereof, was to turn appellee out of his home that he maintained for himself and family, and to damage, harass, humiliate, disturb, annoy and trouble him. That plaintiff (appellee) was required to appear before said court, at Bessemer, Jefferson County, Alabama, and to answer and make defense against said complaint in said court. That said cause was tried in said court on to-wit: the 4th day of August, 1948; that on said date said cause was duly submitted to the Judge of said court, who forthwith and on said date rendered judgment in said cause in favor of appellee here, and held that defendant below, Ben Schwabacher, as plaintiff in said suit, was not entitled to a judgment in said cause. That said action at law against the appellee here was on said date judicially investigated and said prosecution ended, and the appellee here discharged. That in defending against said pretended cause of action so maliciously begun and prosecuted appellee here was compelled to, and did employ counsel, and that the services rendered by his attorney therein was of reasonable value, to-wit: Fifty Dollars ($50.00), which sum is here specially claimed as damages in this cause. And plaintiff, (appellee here), avers that because of the prosecution of said action at law against him, as aforesaid, he thereby suffered great mental pain and anguish, suffered great loss of time and expended sums of money other than his attorneys fee in making defense to said malicious prosecution, and that he has been damaged in the sum aforesaid. Plaintiff also claims punitive damages of defendant.

Demurrers and amended demurrers were filed to the complaint and overruled.

Thereafter the pleading was in short by consent.

The complaint alleges: 1. a judicial proceeding; 2. instigation by the defendant; 3. want of probable cause; 4. malice; 5. termination of the prosecution favorable to the now plaintiff; and 6. damages.

The demurrers were therefore properly overruled. United States Fidelity & Guaranty Co. v. Miller, 218 Ala. 158, 117 So. 668; Wells Co. v. Lane, 22 Ala.App. 269, 115 So. 74, certiorari denied 217 Ala. 10, 115 So. 77; Birmingham Bottling Co. v. Morris, 193 Ala. 627, 69 So. 85; Askin & Marine Co. v. Logan, 24 Ala.App. 13, 130 So. 768, certiorari denied 222 Ala. 52, 130 So. 770.

All of the plaintiffs below were former tenants of the defendant in the Beverly Court Apartments in Bessemer, Alabama, and all had properly paid the rents due thereon. These apartments were registered with the Office of Price Administration, and under the provisions of federal rent control law. Sections 206(a), 209(a) and 209(a)(4) of Public Law 464, 80th Congress, approved 30 March 1948, 50 U.S.C.A.Appendix, §§ 1896, 1899, in force at the time the acts around which this suit revolves, provides as follows:

'Sec. 206(a) It shall be unlawful for any person to offer, solicit, demand, accept, or receive any rent for the use or occupancy of any controlled housing accommodations in excess of the maximum rent prescribed under section 204 or otherwise to do or omit to do any act in violation of any provision of this title. * * *

'Sec. 209(a) No action or proceeding to recover possession of any controlled housing accommodations with respect to which a maximum rent is in effect under this title shall be maintainable by any landlord against any tenant in any court, notwithstanding the fact that the tenant has no lease or that his lease has expired, so long as the tenant continues to pay the rent to which the landlord is entitled unless----

'Sec. 209(a)(4) The landlord seeks in good faith to recover possession of such housing accommodations (A) for the immediate purpose of substantially altering or remodeling the same for continued use as housing accommodations, or for the immediate purpose of conversion into additional housing accommodations, and the altering, remodeling, or conversion cannot practically be done with the tenant in occupancy, and the landlord has obtained such approval as may be required by Federal, State, or local law for the alterations, remodeling, or any conversion planned, or (B) for the immediate purpose of demolishing such housing accommodations'.

Beginning in January 1948, and continuing until shortly before suits for dispossession were instituted, the defendant served on the plaintiffs a series of notices to vacate their respective apartments. The majority of which notices stated that the demand for the premises was 'on account of substantially altering and remodeling' the premises.

Upon the failure of the plaintiffs to vacate, the defendant on 9 July 1948, instituted respective unlawful detainer suits against them in the Bessemer Civil and Misdemeanor Court.

Upon trial of the unlawful detainer suits in the above court on 4 August 1948 Mr. Schwabacher took a nonsuit in each case, after the trial judge had indicated his doubts as to the sufficiency of a building agreement between Mr. Hallmark, a contractor, and Mr. Schwabacher relative to material work on the apartments looking to substantial alterations.

Thereafter, new notices to vacate were given by Schwabacher to the plaintiffs below, and about a month later unlawful detainer suits were again filed, which resulted in judgments by agreements against the tenants, with the understanding they would vacate the premises by a certain date.

It was the theory of the plaintiffs' cases that the allegations by the defendant that he desired possession of the apartments in order to substantially alter and remodel them was but a subterfuge designed to cloak his real desire to obtain possession, and after doing 'a little painting and papering,' re-rent same at substantially higher rents, and that no real effort was made toward any substantial alterations until after the termination of the first unlawful detainer suits.

George Crim testified that Mr. Schwabacher had attempted in January 1948 to get him to sign a new lease on his apartment at a 15% increase in rent, and upon his refusal to do so had told him that he would be evicted, and by doing a little painting and papering he (Schwabacher) could get $45.00 rent for Crime's $25.00 apartment.

Testimony of similar tenor was given by plaintiffs Roy and Gibbs.

The plaintiffs also introduced evidence tending to show that prior to the termination of the first unlawful detainer suits no...