Sparks v. McCrary

• Decision Date: 30 June 1908
• Citation: 156 Ala. 382,47 So. 332
• Parties: SPARKS v. MCCRARY. [*]
• Court: Alabama Supreme Court

47 So. 332

156 Ala. 382

SPARKS v. MCCRARY. ^[*]

Supreme Court of Alabama

June 30, 1908

Appeal from Clay County Court; W. J. Pearce, Judge.

Action in case by J. W. Sparks against John D. McCrary. From a judgment sustaining demurrers to the complaint, plaintiff appeals. Reversed and remanded.

The original complaint is as follows: "(1) Plaintiff claims of defendant $5,000 damages, for that heretofore, to wit, on March 23, 1906, plaintiff was engaged in the mercantile business in the town of Lineville, Ala., carrying a general line of goods, wares, and merchandise, which plaintiff was selling principally for cash, and plaintiff had been engaged in said business for about two years prior to said date, and was dependent upon said business for a livelihood for himself and family; that on or about March 23, 1906, defendant did come into plaintiff's store, where and while plaintiff and three or four clerks were waiting on customers and selling plaintiff's goods, wares, and merchandise to the customers who were in plaintiff's store, and in the presence of many customers, defendant did wrongfully forbid plaintiff and his clerks from selling plaintiff's said goods, wares, and merchandise, and did wrongfully forbid the customers who were in plaintiff's store from buying plaintiff's said goods, wares, and merchandise, stating to said customers that he would take down the names of all parties who made purchases, and that they would have to attend court; and, on being asked by plaintiff by what authority he forbade the sale of the goods, wares, and merchandise of plaintiff, defendant replied, by the authority of the telegram which he had received from Dougherty-Ward-Little Company, which telegram defendant read to and in the presence of plaintiff, his clerks and customers. And plaintiff avers that on account of the action of defendant that plaintiff's customers stopped buying and he and his clerks were thereby forced to stop selling said goods, wares, and merchandise; plaintiff's said customers leaving his said store, to the damage of plaintiff as aforesaid." (2) This count is similar in fact and in statements to count 1, except that it is alleged that defendant, without legal authority and without process of law, did wrongfully, willfully, wantonly, and maliciously do the things complained of in the first count, and as a result the customers were frightened from his store; some leaving without paying for the goods they had already purchased, and others, who were prospective purchasers, being turned away before reaching the store. The third count is similar in all respects to the second.

Demurrers were interposed to these counts as follows: "They are uncertain in their averments. They do not show that the act of the defendant was the proximate cause of the plaintiff's alleged loss. The averments therein are too general. The averments of wrong are mere conclusions of the pleader. For aught that appears, plaintiff was in failing circumstances, and the acts of defendant were legitimate and legal. For that the cause for damage is for prospective loss and said damages are speculative. For that it does not appear that the injury of plaintiff's business was permanent. For that it is not shown that plaintiff was making any profit in his business at the time of the alleged act. These demurrers were sustained, and counts 4, 5, 6, 7, and 8 were added. Count 4 contains the same allegations as to the damnifying act contained in count 1, with the additional averment that as a natural consequence of defendant's act custom was driven out of plaintiff's place of business and plaintiff thereby lost the custom and the profits from its sale. Count 5 is the same as 4, except that it alleges that the wrongs complained of were willfully, wantonly, and maliciously done. Count 6 is the same as counts 1 and 4. Count 7 alleges the same damnifying act, with the additional averment of the amount invested in the business, the average sales per year, and a loss of the profits therein. Count 8 is the same as 7, with the exception that the acts alleged to have been done were willfully, wantonly, and maliciously done. The same demurrers were refiled to these counts, with additional grounds not necessary to be here set out, as they are but an enlargement of the former grounds.

Walter S. Smith, for appellant.

Whatley & Cornelious, for appellee.

McCLELLAN J.

We construe the counts, both original and amendatory, as in case. The wrongful conduct of the defendant, not involving actual or constructive assumption of possession of the storehouse or goods of the plaintiff, or force in any form, was, on the averments, purely consequential in the damnifying consequences alleged to have resulted therefrom. City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389; Ala. Midland R. R. v. Martin, 100 Ala. 511, 14 So. 401; 21 Ency. Pl. & Pr. 783. The gist of the action is that the defendant wrongfully, and in some of the counts it is averred also willfully, wantonly, and maliciously, forbade the plaintiff and his clerks, in the presence of purchasers, or those negotiating to that end, to sell or buy any of the goods of the plaintiff, and threatened, if so, that he would take memoranda of such sales and purchases, and that those so dealing would be required to attend court or to submit to prosecution. It is also averred that business was suspended thereby, that customers left, and that some of the clerks fled. It is not alleged that the defendant was or acted as an officer of the law in any sense.

In section 35 of the Constitution (1901), defining the legitimate limits and ends of government, it is said ...