Luling v. Sheppard , 112 Ala. 588 ( 1896 )

COLEMAN, J.

This is an action of forcible entry and unlawful detainer, or of unlawful detainer. There are several questions presented in the record, which we deem it unnecessary bo consider. The question . which seems to have been a material point in the case on the trial was whether one person can successfully defend, a forcible entry and unlawful detainer or peaceable entry and unlawful detainer of land, when sued, upon the ground, that his entry and detention is in the capacity of agent and not in his own right. One guilty of a forcible entry or unlawful detainer is guilty of a tort. No principle of law is more general and better settled than that one guilty of a tort can not justify on the ground that he was acting in the capacity of an agent, and not on his personal responsibility. It is often a question as to whether the principal is liable for the tortious act of an agent, but it has never been questioned, that the agent was personally liable for his actual torts. The whole question is fully considered in the notes to Greenberg v. Whitcomb Lumber Co., 48 Am. St. Rep. 911; Mayer v. Thompson-Hutchison Building Co., 104 Ala. 611; Perminter v. Kelly, 18 Ala. 716 ; 28 L. R. A. 433.

The instructions on this question given by the trial court are not in accordance with the law, and should not have been given.

We are not sufficiently advised by the abstract to enable us to determine whether the unlawful detainer suit instituted against Kate A. Sheppard, wife of the present defendant, was defended upon the ground, that if there had been a forcible entry upon the lot, and there was an unlawful detainer, it was the act wholly of the husband C. M. Sheppard, of which the then defendant Kate A. Sheppard had no knowledge and was in no way responsible ; but if such was the case and this defense was sustained by the testimony of her husband, the present defendant, he would not be permitted when sued to defend upon the- ground that the detention by him was as agent for the wife.

Reversed and remanded.