Snedecor v. Pope

• Decision Date: 18 April 1905
• Citation: 143 Ala. 275,39 So. 318
• Parties: SNEDECOR v. POPE.
• Court: Alabama Supreme Court

39 So. 318

143 Ala. 275

SNEDECOR v. POPE.

Supreme Court of Alabama

April 18, 1905

Appeal from City Court of Birmingham; W. W. Wilkerson, Judge.

"To be officially reported."

Action by Kate Pope against Frank F. Snedecor. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The complaint consisted of five counts, all of which were amended in respects that need not be noticed before the trial was entered upon. The first count, as amended, was the same as Code 1896, § 3352, form 26, except that the property upon which the trespass was alleged to have been committed was described as "312 South 19th Street, in the city of Birmingham, Ala.," and it was further alleged that plaintiff was the head of a family, and was occupying the premises, with her family, as a residence at the time of the trespass. Defendant demurred to this count, on the ground that the land upon which the trespass was alleged to have been committed was not described with sufficient certainty. The demurrer was overruled. The second count, as amended, was as follows: "Plaintiff claims of the defendant the sum of $5,000 damages in this: that on, towit, the 28th day of February, 1902, the plaintiff was in the possession of the following premises, known as 312 South 19th street, in the city of Birmingham, Ala.; that plaintiff was the head of a family, and with her family was occupying said premises as a residence, and plaintiff avers that the defendant broke into and entered the dwelling house in the possession of the plaintiff and situated on the premises aforesaid, and did the following trespass, towit, tore out the chimney of said house, tore up the roof and floor, severed the house in two parts, tore out one side of the dining room, and rendered said premises uninhabitable." Defendant demurred to this count, among other grounds, because the premises trespassed upon was not described with sufficient certainty and that the time of the trespass was not shown with sufficient certainty. The demurrer was overruled. The third count, as amended, was practically the same as the second count, except that it contained the averment that the trespass was committed while plaintiff "was so in possession," and avers that the trespass was committed unlawfully and against plaintiff's consent. Defendant demurred to this count on the ground that the premises trespassed upon was not described with sufficient certainty. The demurrer was overruled. The fourth count was practically the same as the second, except that it was averred that the trespass was committed "upon her residence, situated at 312 South 19th street, in the city of Birmingham, Ala.," on February 28, 1902. It was not averred that the premises was in plaintiff's possession, nor that she was the owner of same at the time of the trespass. Defendant demurred to this count on grounds that need not be noticed, and the court overruled the demurrer. The fifth count adopted all of the first count, and added thereto matters in aggravation of damages. The defendant demurred to this count, and the court overruled the demurrer. Each count of the complaint alleged in substance that the premises was occupied by plaintiff and her family, and that plaintiff was the head of a family at the time thereof and in aggravation of damages averred that plaintiff and her family suffered great physical pain and mental anguish and were made sore and sick, or that plaintiff and her family were exposed to the inclement weather and were made sore and sick, or that plaintiff and her little sister were caused to suffer greatly, as variously expressed in the different counts of the complaint. Plaintiff moved to strike out the reference to plaintiff's family, and to the sufferings of her family and her children, on the grounds that the same were surplusage, that the sufferings of plaintiff's children constituted no proper element of damage, and that plaintiff could not recover for injuries suffered by or wrongs done to her children. The court overruled the motion. The defendant filed five special pleas besides the general issue. The second was "that defendant entered upon the premises described in the complaint by and with the consent and license of the plaintiff." Plaintiff demurred to this plea on the grounds that the plea did not deny the allegations of the complaint, nor confess and avoid them, and that it did not show that defendant had consent and license of plaintiff to commit the trespass. This demurrer was overruled. The other pleas were as follows: "(3) That defendant was the owner of the premises upon which said trespass is alleged to have been committed. (4) That the premises upon which said trespass is alleged to have been committed was the freehold of defendant at the time thereof. (5) That the acts complained of were done by plaintiff's leave. (6) That defendant's entry upon said premises was in a peaceful manner and without force, and that same was defendant's freehold." Plaintiff joined issue on defendant's third, fourth, and sixth pleas, and replied specially to the third, fourth, and sixth pleas that at the time of the trespass plaintiff was in possession under a lease beginning February 11, 1902, and ending March 11, 1902. Defendant demurred to this special replication on the ground that same tendered an immaterial issue and that the lease under which plaintiff claimed to be in possession was not sufficiently described. The court overruled the demurrer. By replication 4 plaintiff, answering the third plea, alleged that at the time of the trespass plaintiff was in possession of the premises "under a demise from the defendant for a term which had not then expired." Defendant demurred to this replication on the ground that the lease under which plaintiff was in possession was not sufficiently described. This demurrer was overruled. Defendant joined issue on plaintiff's replications, and rejoined specially that the acts complained of were done by plaintiff's leave.

On the trial the evidence for the plaintiff tended to show that for more than a year prior to February, 1902, plaintiff had occupied a building No. 312 South 19th street, Birmingham Ala., as a residence for herself and her four children, as a tenant of one Taylor; that plaintiff was renting the house for a monthly rental of $12.50; that she did not have the house rented for any certain length of time, it being the agreement with her landlord, Taylor, that she could leave the house at any time, and that he could take possession of the house at any time; that on February 12, 1902, Taylor notified her that he had sold the premises to defendant; that she paid her rent to Taylor up to February 11th; that on February 27th defendant notified plaintiff that he had bought the property and intended to make improvements on the premises, nothing being said as to what plaintiff would do while the improvements were being made; that on February 28th defendant's workmen came on the premises and made preparations to move the house; on March 1st the workmen returned and took down one of the chimneys; that on March 3d the workmen returned and moved the two front rooms of the house; that the weather was bad during the time the house was being moved; that plaintiff was the head of her family, and objected to the house being moved; that plaintiff had four small children, and that she and her children suffered inconvenience and discomfort by reason of the changes in the house; that plaintiff left the premises March 14th. The evidence for the defendant tended to show that, before beginning to make the alterations in the house, he had obtained plaintiff's consent to make same, and had agreed to reduce her rent on account of the inconvenience to which she would be subjected; that plaintiff did not object at any time, and was inconvenienced very little on account of the alterations, was not made sick and suffered no pain, neither she nor her family, on that account; that the trade for the premises between defendant and Taylor was made February 7 1902, and on the same day defendant gave plaintiff notice to vacate within 30 days from that date, as he wished to make improvements; that upon the delivery of the notice to defendant she said she would not require notice, but would vacate in a day or two, and that subsequently, before beginning to make the alterations, defendant made the agreement with plaintiff, giving her permission to stay on the premises while same were being made; and that the lease held by plaintiff was a verbal one. On the examination of one Pearl, a witness for plaintiff, she testified regarding her relations with plaintiff, and that she had frequently visited her, and was asked the following questions by defendant "How do you happen to know where plaintiff lives?" to which question the plaintiff objected, the court sustained the objection, and defendant excepted. One Lucy Harris, a witness for plaintiff, stated on cross-examination that plaintiff had dinner with her on the day the house was moved. Being examined as a witness in her own behalf, plaintiff was asked the following question by her attorney: "Did you have any dinner the day they began work on the house?" to which question the defendant objected. The court overruled the objection, and defendant excepted, and the witness answered: "I had no dinner on the day they began to move the house." Defendant, being examined as a witness, was asked: "What did your workman, Henderson, tell you about getting plaintiff's consent in writing to make the alterations in the premises?" to which question the plaintiff objected, the court sustained the objection, and the defenant excepted. One Henderson, a witness for defendant, was asked: "Whether or not the city police headquarters was near this premises?" to which question plaintiff ...