Opinion
1 Div. 51.
November 28, 1918.
Appeal from Circuit Court, Baldwin County; A. E. Gamble, Judge.
Webb, McAlpine Grove, of Mobile, for appellant.
John E. Mitchell, of Mobile, for appellee.
"In order to justify the use of force in ejecting a trespasser from defendant's premises, where he entered peaceably, it should be shown that defendant first requested the trespasser to depart and that he refused after being allowed a reasonable time to do so; but where the trespasser uses actual force in effecting an entrance, then no request is necessary before forcibly ejecting him." 5 Corp. Jur. 634, § 29. This text is fully supported by the cases. Hannabalson v. Sessions (Iowa) 93 Am. St. Rep. 250, note, 256. In our own case of Motes v. Bates, 74 Ala. 374, 378, this qualification of the right to eject is expressly recognized.
In the instant case defendant's testimony that he requested plaintiff to leave his premises, and that she refused to do so, before he used any forec, is contradicted by plaintiff's testimony. It is obvious, therefore, that charge "D," which would have justified defendant's use of force without first requesting plaintiff to depart, was properly refused.
The theory of the rule is that the use of force to expel a trespasser who has entered peaceably is presumed to be unnecessary until the trespasser has refused to go upon request. This issue was necessarily comprehended in defendant's pleas of justification, which affirmed that defendant ejected plaintiff, a trespasser, "using only such force as was necessary to eject her from said hall."
On the cross-examination of plaintiff she was asked, apropos of her visit to the dance hall on the night in question, if she "went down there determined to go in and stay in." On her objection, this question was excluded.
Even though answered affirmatively, we think that plaintiff's uncommunicated purpose in that regard was not material to the issues of the case, viz. whether any force was necessary for plaintiff's expulsion, and, if so, how much and of what kind. Moreover, it would seem that her purpose to enter the hall and remain was sufficiently apparent without any direct admission from her. The exclusion of the question was not reversible error.
The trial judge also excluded a letter written to defendant on the day of the alleged assault by a justice of the peace whom plaintiff has consulted as to her right to be admitted to defendant's dance hall.
Plaintiff had testified that she authorized the justice to write a letter informing defendant that she intended to seek admission on the night in question, and that particular paragraph of the letter was properly admissible, as being in effect a declaration by plaintiff herself. But the letter contains numerous independent observations made by the justice ex mero motu which are irrelevant and flagrantly inadmissible for any purpose offered, as it was, as a whole, the letter was properly excluded.
It seems to be now fully settled in this state that in an action for an assault and battery in Code form, which does not show the character of the offense, there can be no recovery of compensatory damages, even for physical pain or mental suffering, unless the elements of injury are stated and the damages claimed in the complaint. Irby v. Wilde, 150 Ala. 402, 43 So. 574; Powell v. Schimpf, 154 Ala. 665, 44 So. 1044; S. S. S. I. Co. v. Dickinson, 167 Ala. 211, 52 So. 594.
Under these decisions, we are constrained to hold that the trial court erred in refusing to give at defendant's request the several charges denying plaintiff's right to recover for physical injuries or physical suffering caused by the battery complained of.
For this error the judgment must be reversed and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.