Tidmore v. Mills

• Decision Date: 15 August 1947
• Docket Number: 2 Div. 756.
• Citation: 32 So.2d 769,33 Ala.App. 243
• Parties: TIDMORE v. MILLS.
• Court: Alabama Court of Appeals

32 So.2d 769

33 Ala.App. 243

TIDMORE v. MILLS.

2 Div. 756.

Alabama Court of Appeals

August 15, 1947

Rehearing Denied Sept. 2, 1947.

Appeal from Circuit Court, Hale County; L. S. Moore, Judge.

Walter P. Gewin, of Greensboro, and Ward &amp Ward, of Tuscaloosa, for appellant.

W. R Withers, of Greensboro, and McQueen & McQueen, of Tuscaloosa, for appellee.

The following is Count 3 of the complaint:

'Plaintiff claims of the defendant the sum of $10,000.00 damages and for cause of action states as follows:

'That defendant lives in the small town of Moundville, Hale County, Alabama, with a population of, to-wit: 812 people (and that plaintiff lives in Tuscaloosa, Ala., but his place of business is in Moundville;) that plaintiff, as one of the officers of the Farmers Bonded Warehouse Company, had been active for said Company in a suit instituted against it by defendant, whereby defendant sought to recover from said Warehouse Company nine bales of cotton without paying warehouse charges assessed against said cotton by said Company; that said cotton was, during said litigation, being held by said Warehouse Company under a bond and was in custodia legis; that said suit terminated favorably on, to-wit, the 5th day of December, 1945, for defendant in this cause, who was plaintiff in said suit, and that the termination of said suit was generally known in about Moundville to have been successful for A. H. Tidmore. That upon said termination an agent of said Warehouse Company asked defendant in this cause where he wished the cotton delivered and defendant instructed said Warehouse Company's agent to deliver it to defendant's barn and place the same in the doorway thereof, which said property opens on the main street of Moundville in the principal business section thereof. That said delivery of said cotton was made in the daytime on, to-wit, December 26, 1945.

'Plaintiff avers that after the delivery of said cotton as aforesaid, to the barn then in possession or control of defendant, that defendant falsely and maliciously charged plaintiff with having been one of two persons who tried to take his cotton and falsely and maliciously compared plaintiff with Hitler with intent to subject plaintiff to public hatred, contempt, ridicule or shame by erecting and maliciously and falsely publishing, or causing to be erected and published, or by ratifying the erection and publication, or by ratifying the erection thereof and the publication thereof by the leaving on said property, which was within and subject to defendant's control, with his consent, after being requested to remove the same, a sign measuring about seven feet long by two and a half feet high, which sign was prominently displayed over the aforesaid cotton, which was piled in the open doorway next to the sidewalk in a conspicuous position, and which sign was large enough to be read with the naked eye at a distance of about one hundred yards, and which sign was in words and figures as follows:

"This is the 9 bales of cotton the two Hitlers of Moundville tried to take from Arch Tidmore. They got their whipped. So did Hitler.

"As ye sow so shall ye rip.'

'Plaintiff avers that the placing of said sign as aforesaid tended to subject plaintiff to public hatred, contempt, or ridicule and tended to reflect shame upon him.

'And plaintiff avers that said sign was erected at night time, or in the early morning hours of to-wit, December 29, 1945; that defendant knew that said sign was erected on said building during the morning of said day; that defendant was asked on said day to remove the same or to permit it to be removed by plaintiff's messenger but defendant left said sign prominently displayed as aforesaid and in plain view of the Post Office and other places of business in said town and just across the street from the store operated by Virgil Davis and left said sign prominently displayed all day Sunday and same was not removed until December 31, 1945. And plaintiff avers that sign was intended by the defendant to be of and concerning plaintiff and Virgil Davis, and that the reference to the Two Hitlers of Moundville was understood by many of the people of Moundville and by many who saw the sign, to be of and concerning plaintiff and Virgil Davis; that many of the people of Moundville knew of the law suit over the charges on the nine bales of cotton and said law suit was of general notoriety; that many of the people of Moundville knew plaintiff and Virgil Davis, as officers of the Farmers Bonded Warehouse Company, had delivered the nine bales of cotton under the sign to defendant and that the reference on this sign viz., 'The Two Hitlers of Moundville' was of and concerning plaintiff and Virgil Davis.

'And plaintiff avers that at the time said sign was erected and allowed to remain as averred aforesaid, that our Country was at war with Germany, that only a short time prior thereto had actual fighting occurred in which men of this Country had been killed and that feeling was high against Germany and the German people and their leaders; that Hitler was known in Moundville as the leader and dictator of the German people; That Hitler was known at Moundville as the enemy of our Country, as our public enemy, as a man who represented dictatorship, as a man who acted as he willed without regard to the rights of others, as a man who ordered murders done, as a man who stole, as a man who lied to gain his purposes, as a man without Christian principles and ethics and as an international outlaw.

'And plaintiff avers that defendant, by the use of said words on said sign, so placed on a main street of the Town of Moundville just above said nine bales of cotton, intended to publish and charge, and that it was so understood by many of the persons passing along said street who read said sign, that plaintiff was a person who acted like Hitler.

'Plaintiff avers that as a proximate consequence of the erection and publication or of the leaving erected and published said

sign, as aforesaid, of and concerning plaintiff and Virgil Davis, that plaintiff was greatly humiliated, that he was subjected to public ridicule, contempt and shame thereby; all to plaintiff's damage and for punitive and other damages.' Plaintiff sues.

The following are pleas interposed by defendant:

'8. The defendant A. H. Tidmore, as a defense to the action of the plaintiff says that, at the time said action was commenced, the plaintiff was indebted to him in the sum of $5,000.00 damages because of the following, to-wit:----

'The defendant avers that the plaintiff, his agents, servants or employees, acting within the line and scope of their employment, did commit trespass on the home property of the defendant located in or near the town of Moundville, Alabama, and more particularly described as follows, to-wit: * * *

'The defendant warned the plaintiff, or his servants, agents or employees while acting in the line and scope of their employment, on to-wit, Dec. 29, 1945, not to enter upon his premises as his wife was critically or desperately ill and at the point of death. The defendant further avers that the plaintiff, his servants, agents or employees, while acting within the line and scope of their employment, and notwithstanding the defendant's warning, did on to-wit Dec. 29, 1945, enter upon the said premises of the defendant creating a disturbance and loud noises and thereby annoying and injuring the defendant's wife and causing her illness to be extended and as a result thereof the defendant did lose the services and society of his wife for a great many days and also caused the defendant to incur doctor's bills and drug bills and other expenses all to the damage to the defendant in the aforesaid sum, and which said sum he hereby offers to set off against the demand of the plaintiff, or recoup of the plaintiff, and he hereby claims judgment for the excess.

'9. The defendant A. H. Tidmore, as a defense to the action of the plaintiff says that, at the time said action was commenced, the plaintiff was indebted to him in the sum of $5,000.00 damages, for matters, things and events arising out of the same matters, things, events and transactions described and set forth in the complaint, because of the following, to-wit:

'The defendant avers that the plaintiff, his agents, servants or employees, acting within the line and scope of their employment, did commit trespass on the home property of the defendant located in Hale County, Alabama, at or near Moundville and more particularly described as follows: * * *

'The defendant avers that he warned the plaintiff, or his agents, servants and employees, while acting within the line and scope of their employment, not to enter upon his said premises as his wife was at the time critically or desperately ill and at the point of death. The defendant further avers that the plaintiff, his servants, agents or employees, while acting within the line and scope of their employment, in disregard of the defendant's warning, did enter upon said premises of the defendant creating a disturbance and loud noises and thereby annoying and injuring the defendant's wife and causing her illness to be extended, and as a result thereof the defendant did lose the services and society of his wife for a great many days and also caused the defendant to incur doctor's bills and drug bills and other expenses all to the damage to the defendant in the aforesaid sum, which said sum the defendant hereby offers to recoup of the demand of the said plaintiff, and he hereby claims damage for the excess.

'And defendant avers that the matters, facts, things and transactions herein described and complained about arose out of the same transaction about which the plaintiff complains in his complaint.'

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