Southern Ry. Co. v. McEntire

• Decision Date: 26 February 1910
• Citation: 169 Ala. 42,53 So. 158
• Parties: SOUTHERN RY. CO. v. MCENTIRE.
• Court: Alabama Supreme Court

53 So. 158

169 Ala. 42

SOUTHERN RY. CO. v. MCENTIRE.

Supreme Court of Alabama

February 26, 1910

Rehearing Denied June 30, 1910.

Appeal from Circuit Court, Morgan County; Marvin West, Special Judge.

Action by R. P. McEntire against the Southern Railway Company for damages for trespass to realty. Judgment for plaintiff, and defendant appeals. Affirmed.

The first count alleges that the plaintiff owns and did own prior to 1st of December, 1904, the following described land giving description, and that the defendant engaged in operating a railroad, and on or about said date caused an excavation two or three feet deep to be made across plaintiff's property, and has constructed or caused to be constructed a railroad track in said excavation, and proposes to propel cars and trains over said track. It is then averred that the entry by the railroad on the lands as aforesaid was without plaintiff's consent and without making him compensation, and that a part of his lot, which is described has been rendered wholly useless, and the value of the remainder greatly diminished. Count 2 declares on a malicious trespass on the part of the defendant by the same act on the same property. It is alleged in the counts that there is a large two-story brick building on the property.

Exception was reserved to the following part of the oral charge of the court: "The second count of the complaint alleges that the trespass was malicious. The word 'malice,' so far as it is involved in this case, does not necessarily mean ill will or hatred; but in contemplation of law, if a wrongful act is committed against the property of another intentionally and purposely, and in known violation of the owner's rights, and without lawful excuse, this would authorize you to find that it was done maliciously. If, from the evidence in this case, you should find that the allegation of the second count of the complaint is true, and that the defendant committed a malicious trespass upon the land of the plaintiff, and that injury to said land resulted proximately from such trespass, then you would be authorized to assess against the defendant punitive or exemplary damages; that is to say, damages awarded as a punishment to defendant for such malicious trespass. The amount of such punitive damages is to be fixed at such sum, not exceeding $4,000, as in the exercise of a reasonable and just discretion, after considering all the evidence, you should consider to be just and proper."

Humes &amp Speake, for appellant.

Callahan & Harris, for appellee.

MAYFIELD J.

While in an action of trespass to land, it is necessary to prove that plaintiff was in possession or had the right to immediate possession at the time of the alleged trespass, yet he need not allege such facts in that manner; it is sufficient to allege that the land in question belonged to plaintiff. Code 1907, vol. 2, form 26, p. 1199; Brinkmeyer v. Bethea, 139 Ala. 377, 35 So. 996.

There was certainly no reversible error in allowing plaintiff to amend his complaint by adding count 2 thereto, because, on the former trial, or at a former term of the court, plaintiff had withdrawn this count from his complaint. If not a matter of absolute right under the statute (and we do not deny this), it was certainly within the discretion of the court to allow the amendment at that time and in that manner. Withdrawing the count as it was withdrawn clearly did not amount to a "retraxit," or estop or prevent plaintiff from refiling the same, and certainly not, with the permission of the court.

Under our system of pleading, the withdrawing of one of several counts of a complaint is nothing more, in effect, than an amendment of the complaint by striking out such count; and there is no impropriety, much less error, in allowing the plaintiff to refile the count thus stricken out or to again amend his complaint, by adding thereto the count theretofore withdrawn or stricken, unless it should be made to appear that the pleader, in so doing, was trifling with the court, or intending to delay the trial.

Such withdrawal of certain counts is not a "retraxit," nor tantamount thereto. It is not a formal renunciation of plaintiff's right of action in open court, by which plaintiff forever loses his right...