Stowers Furniture Co. v. Brake

• Decision Date: 17 December 1908
• Citation: 48 So. 89,158 Ala. 639
• Parties: STOWERS FURNITURE CO. v. BRAKE.
• Court: Alabama Supreme Court

48 So. 89

158 Ala. 639

STOWERS FURNITURE CO. v. BRAKE.

Supreme Court of Alabama

December 17, 1908

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by N. G. Brake against the Stowers Furniture Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint is as follows: "Plaintiff claims of defendant the sum of $5,000 as damages, for that heretofore, to wit, on or about the 17th day of October, 1905, the defendant, its servants, agents, or employés, while acting within the scope of their employment, entered into the house occupied by plaintiff, and then and there assaulted and beat her, and then and there took from her possession and carried away her household furniture, goods, chattels, and jewelry. Plaintiff avers that as a proximate result of said wrong she has been deprived of the possession of said property, has been caused to suffer much physical and mental pain and anguish; that she was greatly distressed, her peace and comfort destroyed, and her health impaired; that she has been caused to lose much sleep and rest, has been caused great inconvenience and vexation," etc. This count was amended by adding the words "a corporation" after the words "Stowers Furniture Company." Count A is practically the same as count 1, except that it gives the number of the house and its location, and alleges the wrongfulness of the acts complained of. This count alleges the wrongs to defendant itself. Count B: Same as count A, except that it alleges that the agents, servants, or employés of defendant acting within the line and scope of their duties and employment, committed the acts complained of in the third count. It is further alleged in count B that her injuries are permanent. Count C alleged that defendant wrongfully willfully, and wantonly committed the acts complained of in count 1, and also the permanency of her injuries. Count D is the same as C, except that the acts are alleged to have been committed by the servants, agents, or employés of defendant while acting within the line and scope of their employment.

Demurrers were interposed as follows: To the first count, "because it is not averred that defendant committed the wrongs therein complained of; (2) it is averred in said complaint in the alternative that the defendant, its agents, servants, or employés, committed the wrongs therein complained of, without averring that the agents, servants, or employés, at the time of the commission of the alleged wrong, were acting within the line or scope of their employment or authority." Defendant refiled demurrers interposed to count 1 to each of the other counts separately, with the following additional grounds: "(1) The counts fail to allege that plaintiff was rightly possessed of the goods; (2) that plaintiff was the owner of the goods; (3) that plaintiff had possession of the goods as against defendant. (4) It fails to allege that plaintiff's possession was superior to the rights of said Reynolds and Denegre, charged with being the actual tort-feasors."

Plea 3 was as follows: "Defendant says that all the property that was taken from plaintiff's house, or the house occupied by plaintiff, was the property of defendant, and that it had the right to immediate possession thereof; and defendant avers that only such force was used as was reasonably necessary to take peaceable possession and control of said property, and that so taking possession and control of said property constitute the acts complained of in plaintiff's complaint." Plea 8: "Defendant says and avers that the property taken from the house occupied by plaintiff was its property; that on the ______ day of ______, 1905, the defendant, by and through its counsel, filed a suit in detinue for the property so taken from the said house in the justice court of R. B. Watts, who was holding himself out and exercising the powers and jurisdiction of the justice of the peace in Jefferson county, Ala.; that on the ______ day of ______, 1905, after a service of the complaint on plaintiff in said cause, said R. B. Watts rendered a judgment in defendant's favor for said property; that thereafter, to wit, on the ______ day of ______, 1905, said R. B. Watts, while exercising said power and jurisdiction of such justice of the peace, issued a writ of restitution on said judgment, and placed the same in the hands of J. T. Burton, who was at the time an acting constable in and for precinct 21, Jefferson county, Ala., the precinct in which said property was located; that said constable or one of his deputies took said property under said writ of restitution, which was regular on its face, and turned over and delivered said property to defendant as bailee. And defendant avers that it took no part in the taking of said property, and never ratified any alleged wrongful act of said Reynolds and Denegre."

Charge 17 was as follows: "If the jury believe the evidence in this case, they cannot find in favor of plaintiff."

Ward & Rudolph, for appellant.

Arthur L. Brown and Sumter Lea, for appellee.

DENSON J.

The complaint as originally filed contained only one count. In it the defendant was described as "Stowers Furniture Company," without any averment to show whether it was a partnership or a corporation. The court properly allowed the amendment showing that the defendant is a corporation. Ex parte Nicrosi, 103 Ala. 104, 15 So. 507. Nor did the court err in allowing counts A, B, C, D, and E as amendments to the complaint.

The action, then, is against a corporation; and each count of the complaint alleges trespass vi et armis to the person, and trespass vi et armis and de bonis asportatis, conjunctively. This is permissible in this jurisdiction, when the alleged trespasses are parts of the same transaction. Here they are sufficiently shown to be parts of the same transaction, and the demurrer in this respect was properly overruled. Henry v. Carleton, 113 Ala. 636, 21 So. 225; Birmingham, etc., Co. v. Lintner, 141 Ala. 420, 38 So. 363, 109 Am. St. Rep. 40; Southern Suspender Co. v. Van Borries, 91 Ala. 507, 8 So. 367; L. & N. R. R. Co. v. Mothershed, 97 Ala. 261, 12 So. 714.

The other grounds of demurrer to the complaint are fully answered by the allegations of the several counts.

The defendant pleaded eight pleas, Nos. 1 and 2 of which being the general issue. Under these pleas of the general issue, all matters set up in the other pleas (except, perhaps, that contained in pleas 3 and 8, might have been proved; consequently the court cannot be put in error for sustaining demurrers to said pleas.

As to the sufficiency of plea 3, it is argued that the owner of personal property has the right to take peaceable possession wherever he may find it, if he is entitled to the immediate possession. This is true, and the principle may be extended to a vendor in a conditional sale contract, after breach of the condition; but the taking must, indeed, be a peaceable one. Here the complaint avers the commission of an assault and battery as the accompaniment of the taking; and, construing plea 3 most strongly against the defendant, it is apparent that it does not clearly show that a breach of the peace was not committed. The demurrer takes the point, and the court properly sustained it. Fuller's Case, 115 Ala. 66, 22 So. 491.

In respect to plea 8 it will be observed that it fails to negative or traverse the averments of the complaint to the effect that an assault and battery was committed by defendant's servants while acting within the scope of their employment. For this reason, as well as for others, the demurrer to this plea was well sustained.

We come now to consider questions presented by the bill of exceptions. It is the subject of express decision by this court that declarations of a sick person, relative to the symptoms and nature of the disease or injury under which he is laboring, whether made to a physician or other person, are admissible as original evidence. "Such declarations are admissible as explanatory of the present condition of the declarant, upon the principle of res gestæ, as well as upon the necessity of the case." Rowland v. Walker, 18 Ala. 749; Eckles & Brown v. Bates, 26 Ala. 655, 659; Phillips v. Kelly, 29 Ala. 628; Birmingham, etc., Co. v. Hale, 90 Ala. 8, 8 South, 142, 24 Am. St. Rep. 748; Montgomery St. Ry. Co. v. Shanks, 139 Ala. 489, 501, 37 So. 166; Birmingham Ry., Light & Power Co. v. Rutledge, 142 Ala. 195, 202, 39 So. 338; Kansas City, M. & B. Ry. Co. v. Matthews, 142 Ala. 298, 311, 39 So. 207.

According to this principle, rulings of the court challenged by the ninth, tenth, and eleventh grounds in the assignment of errors, even if the questions were properly presented, could not be sustained. We note that no exception was reserved to the rulings of the court in respect to the matters embraced in the ninth and tenth assignments, while, in respect to the eleventh assignment, the former part of the question falls within the principle above alluded to; but the answer of the witness was not responsive, and the defendant should have adopted a motion to exclude as the remedy against the answer.

In respect to the twelfth ground in the assignment of errors, it is sufficient to say that no exception was reserved to the ruling of the court.

It does not appear from the bill of exceptions that the question to the witness Stancil, "Then what was said, if anything?" was objected to. The answer thereto was responsive, and the ...