Opinion
8 Div. 834.
October 3, 1939. Rehearing Denied October 31, 1939.
Appeal from Circuit Court, Lawrence County; W. W. Callahan, Judge.
Action for assault and battery by T. W. Naylor against Mary Sherrill. From a judgment for plaintiff, defendant appeals.
Affirmed.
Certiorari denied by Supreme Court in Sherrill v. Naylor, 238 Ala. 653, 193 So. 185.
Defendant's special pleas aver, in substance, that the plaintiff came onto defendant's farm where she and her children had their home, after having been requested not to do so, and that he was drunk, and manifested this condition by the use of rude, boisterous and profane language, gave whiskey to one of defendant's minor sons, causing him to become drunk; that defendant, upon learning of plaintiff's presence and actions, conduct and demeanor sent a message to plaintiff, requesting that he leave the premises immediately, but plaintiff failed to do so, and lay down on the floor of one of the buildings on defendant's premises and went to sleep; that the plaintiff was a young, strong and able-bodied man, and the defendant a frail and weak woman; that defendant attempted to make plaintiff leave the premises by pouring a small quantity of crude oil on his bare skin, this being her only recourse to effect his removal from the premises, and she used only such means as were necessary to accomplish his removal; that the message sent by defendant to plaintiff to immediately leave was promptly delivered to and understood by plaintiff, and still the plaintiff refused to leave, although he had ample time and opportunity to do so; that defendant undertook to procure official aid to eject plaintiff, and, failing in this, she poured this liquid on him, and that this was reasonably calculated to cause plaintiff to leave her premises.
The following charge was given at plaintiff's request: "1. A landowner is not justified in pouring a painful liquid upon a man found, on the landowner's premises, even though the intruder may be drunk."
John W. Sherrill, Jr. and S. A. Lynne, both of Decatur, for appellant.
If plaintiff was warned to stay off defendant's premises and failed or refused to do so and remained there intoxicated, he was there unlawfully and defendant had the right to remove him, using as much force as was reasonably necessary under the circumstances. Whether defendant was justified in what she did was a question for the jury to determine from all the circumstances shown. Brookside-Pratt Min. Co. v. Booth, 211 Ala. 268, 100 So. 240, 33 A.L.R. 417; Donnell v. Great A. P. T. Co., 229 Ala. 320, 156 So. 844; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; Riddle v. Brown, 20 Ala. 412, 56 Am. Dec. 202; State v. Johnson, 12 Ala. 840, 46 Am. Dec. 283; Ryan v. Marren, 216 Mass. 556, 104 N.E. 353, 354, Ann. Cas. 1915B, 760, 761; Mugford v. Richardson, 6 Allen, Mass., 76, 83 Am.Dec. 617; Stager v. G. E. Lothrop Theatres Co., 291 Mass. 464, 197 N.E. 86, 87; Souter v. Codman, 14 R.I. 119, 51 Am. Rep. 364, 365; Low v. Elwell, 121 Mass. 309, 23 Am. Rep. 272; Noonan v. Luther, 206 N.Y. 105, 99 N.E. 178, 41 L.R.A., N.S., 761, Ann. Cas. 1914A, 1038, 1039; Thomason v. Gray, 82 Ala. 291, 3 So. 38. The determination of the issue on conflicting evidence is for the jury. Hall v. Posey, 79 Ala. 84; Standard Oil Co. v. Myers, 232 Ala. 662, 169 So. 312. No preponderance of conflicting testimony, however great, can justify the withdrawal of a disputed question of fact from the jury by affirmative charge. Armour Co. v. Alabama Power Co., 17 Ala. App. 280, 84 So. 628. Affirmative charge should be given only where evidence is without conflict. Franks Sons Co. v. Davis, 214 Ala. 601, 108 So. 575.
E. W. Godbey, of Decatur, for appellee.
The principle that no more force must be used than necessary is not applicable to plaintiff, who was unable to leave or to comprehend warnings, defendant taking no measures calculated to assist or to effect his removal. Bates v. Birmingham R., L. P. Co., 203 Ala. 54, 82 So. 14; Piggly-Wiggly Alabama Co. v. Rickles, 212 Ala. 585, 103 So. 860; Donnell v. Great A. P. T. Co., 229 Ala. 320, 156 So. 844; Miller-Brent Lbr. Co. v. Stewart, 166 Ala. 657, 51 So. 943, 21 Ann. Cas. 1149; Bynum v. Jones, 177 Ala. 431, 59 So. 65; Moore v. Nashville, etc., R. Co., 137 Ala. 495, 34 So. 617; Hart v. Jones, 14 Ala. App. 327, 70 So. 206. Defendant was without right to require plaintiff to leave premises of tenant and use means employed. Lacey v. Morris, 215 Ala. 302, 110 So. 379; Walden v. Conn, 84 Ky. 312, 1 S.W. 537, 4 Am. St. Rep. 204; King Land Imp. Co. v. Bowen, 7 Ala. App. 462, 61 So. 22; McKeen v. Nelms, 9 Ala. 507. No one has a right to use force to expel a non-boisterous intruder who has become a sojourner. Hendrix v. State, 50 Ala. 148; Birmingham R., L. P. Co. v. Norris, 2 Ala. App. 610, 56 So. 739. The provocation attempted to be set up was too remote and altogether trivial. Birmingham R., L. P. Co. v. Norris, supra. Objection to remarks of counsel for plaintiff as to defendant's failure to testify is not tenable. Morris v. McClellan, 154 Ala. 639, 45 So. 641, 16 Ann. Cas. 305.
Count One of the complaint is as follows: "Count 1: The plaintiff claims of the defendant the sum of Ten Thousand ($10,000) Dollars as damages, for that, heretofore on or about the 14th day of June, 1936, the plaintiff in the early afternoon was lying peacefully asleep in an outhouse or barn on the premises of one, Oscar (Austin) Owens, a tenant, on the plantation of defendant, or of her husband, S. L. Sherrill, at which time and place defendant wrongfully poured crude coal oil, petroleum, or other hurtful liquid on the plaintiff, whereby plaintiff's eyes, head, shoulders, and back were caused to be burned, blistered, and inflamed, and made sore; and plaintiff was thereby caused to suffer great mental and physical agony, and was caused to lose sleep and rest. The leaders or muscles in the back part of his neck were thereby approximately caused to be drawn, strained, and made painful; and plaintiff's earning capacity and his ability to work and to earn money were greatly diminished and impaired, and his health undermined, and his physical powers permanently weakened." This count being taken as it is written charges an assault and battery by the defendant on the person of the plaintiff, and is not subject to any ground of demurrer interposed. Even eliminating the word "wrongfully", which defendant claims is a conclusion of the pleader, the count charges an assault and battery which would justify a recovery.
The allegations in the count were sufficient to justify a recovery of compensatory damages for physical pain or mental anguish. Miller v. McGuire, 202 Ala. 351, 80 So. 433.
The pleas filed by the defendant to the complaint were by way of confession and avoidance, but it is not averred in said pleas that the assault and battery alleged in the complaint was at the same time or immediately connected with the alleged misconduct of the plaintiff. Nor, were the facts alleged in the pleas sufficient to connect the act of defendant with the alleged misconduct of the plaintiff. The facts as set up in the several pleas do not present a defense to this action. The demurrers to the pleas were properly sustained.
The facts as shown by this record on the part of the plaintiff tend to prove that the plaintiff was lying in a barn, or outhouse, on the plantation of the defendant; said barn being connected with the residence of a tenant on defendant's place; that the plaintiff had been taken to the outhouse by the occupant of the tenant house and there left in a condition of inebriety; that he was unconscious, helpless and that this condition was either from alcohol or that he was sound asleep; that while in this condition the defendant came to the door of the outhouse and threw a lot of coal oil on plaintiff's face and shoulders, causing serious injury to his eyes, his skin and his shoulders, producing blisters which were painful and injurious and required medical attention.
There was some evidence tending to prove that the outhouse in which plaintiff was asleep, or unconscious, was not in the possession of the defendant at the time of the assault, but was in the possession of her tenant. But, as to this, we think the whole inquiry was immaterial. Granting, for the sake of the argument, that defendant was in possession of the outhouse; that plaintiff was in the outhouse after he had been warned to stay out; and granting further, that defendant had a right to eject plaintiff from the premises, these facts did not give to the defendant the right to throw on the face and body of the unconscious and defenseless plaintiff the noxious or poisonous fluid which, according to the inferences to be drawn from the evidence, she did. If the plaintiff was to be ejected, defendant had her adequate remedy in a legal way to have accomplished this fact.
Counsel for appellant have quoted to us, in brief, the strong language used by our Supreme Court in the case of Simpson v. State, 59 Ala. 1, 14, 31 Am. Rep. 1, and have cited numerous authorities declaring that it is a settled principle of our law, that everyone has the right to defend his person, and property, against unlawful violence, and may employ as much force as is necessary to prevent its invasion. But appellant's counsel have found no decision, and we dare say could not find a decision, where a property owner finding a trespasser unconscious, harmless, defenseless, lying on his premises could, in any manner, be justified in dashing a cup of petrol or vitriol, or other dangerous fluid, in his face as a method of ejecting him from the premises.
In line with the foregoing, the trial court committed no error in giving, at the request of the plaintiff, charge No. 1.
Under the facts as disclosed by the record, there was no evidence that the plaintiff committed any wrong against the property or possession of Mrs. Sherrill, the defendant. And hence, a charge given at the request of the plaintiff asserting this fact was without error.
In connection with the giving of the charge: "If the jury believe the evidence, Mr. Naylor committed no wrong against the property or possession of Mrs. Sherrill," the court stated: "The plaintiff has asked the general charge in this case on that point and I am going to give it. I give that charge that if you believe the evidence in this case, that you will find that the premises where this happened were in the possession of Austin Owen. A little further on that point: If Austin Owen was living there at that place at that time and had been living there, and was in possession of that place at the time this case happened, by any kind of arrangements, that he had with Mrs. Sherrill, or by her permission, then gentlemen of the jury, it was his premises and a notice by Mrs. Sherrill to keep off of her premises would have no application to a trespass on those particular premises at that time." But, be that as it may, and even if the out-house, where the plaintiff was found and where he was assaulted, was in the possession of the defendant, the act of throwing the petrol on him in the manner testified to by the witnesses cannot be justified on the theory that she was doing it in an effort to eject him. However, the undisputed fact was that the barn or outhouse was in possession of Austin Owens, tenant of the defendant.
In his argument to the jury plaintiff's counsel made the statement: "In failing to take the stand and tell what was in the cup, she impliedly admits that she is guilty." This is a mere argument on the part of counsel, and the action of the court in overruling defendant's objection was without error. The fact as to whether the defendant committed the act resulting in the injury of plaintiff was a question, under the evidence, for the jury.
We have read this record and considered every proposition raised by the appellant in connection with the very extensive and careful oral charge of the court, and we find that the appellant was given on the trial even more than she was entitled to by way of her defense, and if technical errors have crept in they were as to matters not substantially affecting appellant's rights.
Under the facts of this case the application of such force as was used by the defendant on the plaintiff cannot be justified by the fact that she was the owner of the property where the plaintiff was found, and that at the time she threw the fluid on him he was a trespasser. Miller-Brent Lumber Co. v. Stewart, 166 Ala. 657, 51 So. 943, 21 Ann. Cas. 1149; Bynum v. Jones, 177 Ala. 431, 59 So. 65; Moore v. Nashville, C. St. L. R., 137 Ala. 495, 34 So. 617.
If the owner of property desires to eject a trespasser, the law affords him appropriate remedies, but it does not countenance the substitution of physical violence in the place of these remedies. Birmingham Ry. Light Power Co. v. Norris, 2 Ala. App. 610, 56 So. 739.
We find no reversible error in the record, and the judgment is affirmed.
Affirmed.