Walker v. Chanslor

This action was brought to recover damages for an assault and battery alleged to have been committed by defendants upon plaintiff.

The evidence discloses that the assault and consequent injuries to plaintiff occurred in a contest between two oil companies for the possession of a quarter section of land.

Trial was had before the court without a jury, and from the findings of the court it appears that on April 14, 1901, an oil corporation known as the Superior Sunset Oil Company went into the possession of said quarter section—the northwest quarter of section 26, township 32 south, range 23 east M. D. M., in Kern County—and was in occupation thereof on April 20, 1901, and continued to occupy it until some time thereafter; that on the nineteenth da,y of April, 1901, plaintiff went into the service of said corporation, and at the time the injuries complained of by him were sustained was upon said premises, together with certain officers and other employees of said corporation ; that about the hour of 12:30 a. m. of April 20, 1901, these defendants (appellants herein) who were either officers, directors, or stockholders of another oil company known as the Mt. Diablo Mining and Development Company, together with- the employees of said company, all .armed with rifles, guns, and pistols, went upon said land with the intention of driving all persons connected with the Superior Sunset Oil Company therefrom; that upon the entry of defendants and such employees upon the said land, an employee of the Superior Sunset Oil Company—Cornell—went out to meet them in order to ascertain their reason for coming on the land; that when he came up to them defendants commanded him to-throw up his hands, and, upon his refusal to do so, began shooting at him; that when the shooting commenced plaintiff and others connected with the Superior Sunset Oil Company ran over to where the defendants were to ascertain what was. going on; that these defendants and those with them immediately began shooting at plaintiff and those who accompanied him, firing some seventy-five or a hundred shots; that plaintiff was shot through the body and received several other gunshot wounds at the hands of defendants and those with them,

The court further found that at the time of the shooting the Superior Sunset Oil Company was in possession and occupation of said quarter section, claiming it as its own, as lands chiefly valuable for petroleum oils, under oil mining locations thereof, and that when defendants entered thereon they had no right or business on said land, and were there in violation of law; that the shooting of plaintiff by said defendants was willful and deliberate, the result of an unlawful conspiracy by defendants to violently and by force of arms drive the officers and employees of the Superior Sunset Oil Company and plaintiff off said lands, and that such shooting by defendants was wanton and done with malice and deliberate intent to harm the plaintiff and the other parties who were with plaintiff on the land.

The court rendered judgment in favor of plaintiff against nine of the defendants for the sum of eight thousand five hundred dollars, five thousand dollars thereof being for actual damages and three thousand five hundred dollars for exemplary damages. These nine defendants appeal from the judgment and from the order of the court denying their motion for a new trial.

Before proceeding to consider the merits of these appeals it is proper, as bearing on the points presented here for consideration, to say that there was testimony in the case, introduced on behalf of defendants, that when the officers and employees of the Superior Sunset Oil Company were about to enter and take possession of said quarter section on April 14, 1901, they were met by the superintendent of the Mt. Diablo Oil Company (of which the defendants were officers, directors, and stockholders), who was then upon the section, and who told them that the land belonged to the Mt. Diablo Mining and Development Company, that the company had an oil derrick on it, that he was superintendent, managing the property for it, and they were forbidden to enter, but nevertheless did so. There was evidence also offered by defendants, that after they entered on the property on the night of the shooting their spokesman stated to the person representing the Superior Sunset Oil Company, who came to meet them, that they (defendants) were representatives of the Mt. Diablo Company and

The principal points urged on the appeal for a reversal are as to the rejection of evidence by the tidal court, offered by the defendants under their amended answer.

In that answer defendants set up that the Mt. Diablo Mining and Development Company was the owner of the lands in question and on the fourteenth day of April, 1901, was in the possession thereof, and that defendants were employees, officers, and directors of that corporation; that on the fourteenth day of April, 1901, the Superior Sunset Company forcibly dispossessed said Mt. Diablo Company, and thereafter maintained possession of said lands; that on April 19, 1901, defendants, at the instance of the Mt. Diablo Company, and on its behalf, went on the said lands to protect the interest of said corporation, and while thereon were shot at by plaintiff and the other employees of the Superior Sunset Oil Company without cause or provocation, and only returned the fire of said parties in defense of their lives; and that any gunshot wounds received by plaintiff were by reason of said unlawful attack of the Superior Company’s employees upon the defendants.

While many exceptions were reserved to the rulings of the eourt in the admission and rejection of testimony, the points relied on on this appeal relate only to the rejection by the court of evidence tendered by the defendants to show the title of the Mt. Diablo Oil Company to the quarter section in question, and the refusal of the court to allow the witnesses of defendants to testify as to their intentions in going upon said land, and to the taking of the advice of counsel relative to

Upon the trial of the cause the plaintiff was permitted to show that the quarter section in question was, on April 19, 1901, unoccupied public land, and that the Superior Sunset Oil Company on that day took possession of and occupied it; that it built a bunk-house and cook-house on the land for its officers and employees, and had been, up to the time of the entry by defendants, engaged in constructing a derrick and placing the necessary machinery for oil drilling purposes, and the court, as we have heretofore stated, found that said Superior Sunset Oil Company was, at the time of the injury of plaintiff, in the possession and occupancy of said land, claiming it as its own.

When the defendants tendered their evidence to show title in the Mt. Diablo Mining and Development Company to the land, as set up in their amended answer, an objection interposed by counsel for plaintiff that “any question of title is irrelevant and immaterial for any purposes of the case” was sustained, the court stating, “I don’t think if they had a United States patent they would have any right to go there and force parties who were there wrongfully off the premises. I am not going to try any question of title.” Subsequently, the whole deraignment of title of the Mt. Diablo Mining and Development Company to this quarter section was deemed offered by defendants, objected to and the objection sustained. Under exceptions taken by defendants to both these rulings, the question as to the correctness of such rulings is presented for review.

This appeal was originally heard by the district court of appeal for the second appellate district, and in deciding it, it was held by that court that the rulings of the trial court, rejecting the offer of proof of title, as far as it was interposed as a defense against the claim of plaintiff for actual damages was correct; that the matter of title of the Mt. Diablo Company was not a material issue in the case. The appellate court, how

In harmony with these views, the appellate court held that it was error to exclude the evidence tendered on all these matters—the title of the Mt. Diablo Company, the taking of advice of counsel, and the intentions of defendants—solely, however, because they were admissible as bearing on the question of exemplary damages, and directed that the judgment and.order appealed from should be reversed for this error, unless- the plaintiff would, within a given time, elect to accept the judgment for actual damages alone and release that portion of the judgment awarding him exemplary damages.

A petition of appellants that the cause be heard and determined by this court, having been granted, the matter is now before us for disposition.

There can be no question but that' the district court of appeal was right in holding that the evidence offered by the defendants of title in the Mt. Diablo Company to this land, the taking of advice of counsel by defendants as to their contemplated action with reference to entering upon the property in question, and their intentions in doing so, were admissible on-the question of exemplary damages. Damages of an exemplarly character could only be assessed against the defendants upon a showing of malice in fact as distinguished from malice in law. Under the claim made by the plaintiff for exemplary or punitive damages, the good faith and motives of the defendants were directly in issue. And, as bearing on that issue any facts which tended to show their motive and intent in entering upon the premises in question were admissible. As was properly said by the district court of appeal on that sub

Upon this point it is unnecessary to engage in any further discussion because the claim of appellants that this testimony "offered by them was admissible upon the question of exemplary damages is not contested by respondent in his original brief. The claim of error in this respect is not there discussed by counsel for respondent, or authority advanced by him in support of the ruling of the trial court in his briefs. Nor in the supplemental brief of respondent, filed on rehearing here is it undertaken to defend the rulings in this regard. All that is insisted on here is, that some evidence offered as to the good motives and Intentions of the defendants in making entry on the land did not sustain them. But this is beside the point urged here. The question is not what was the effect of the evidence on these points which was admitted, but whether it was error to reject other and additional evidence offered on this subject, and we make no question but that it was.

But while we agree with the district court of appeal in its views as to the admissibility of all this evidence offered, as far as it went, we are of the opinion that that court took too re

The amended answer set up that the Mt. Diablo Mining and Development Company was the owner of the land in question on April 14, 1901, and had been forcibly dispossessed therefrom by the Superior Sunset Company on that day; that the defendants as officers, directors, and employees of the Mt. Diablo Company, at its instance and on its behalf, went on said premises on the nineteenth day of that month to protect the interest of the latter company; that while there they were attacked by the employees of the Superior Sunset Company and defended themselves against said attack, and that any injuries sustained by plaintiff were received while defendants were repelling such attack in self-defense. In other words, that the Mt. Diablo Company, at all such dates, as owner of the land, was entitled to the possession of it; that the defendants, as officers thereof, entered only in the exercise of the right of entry possessed by said company as owner of the property and only used such 'force against those wrongfully in possession as was necessary to protect them in the exercise and assertion of such right.

The view of the district court of appeal was that this de- ■ fense could not be asserted against a claim for actual damages; that although one was the owner and entitled to the immediate possession of property, yet if he attempted to obtain possession of his property by force, and in doing so, injury was sustained by a trespasser thereon, proof of such right of entry which the owner attempted to exercise, employing no more force than was necessary to expel the trespasser, would be available to him in defense of a claim for exemplary damages only; that the existence of such right, and its exercise, without unnecessary force, would be no defense against a claim of the trespasser for actual damages sustained by him while the owner was asserting his right of entry.

This view, however, is incorrect. The rule obtaining in this state is subject to no such limitation. It is broader and is the rule of the common law. At common law the owner of real estate had the right to enter upon his property to expel by force an intruder and in doing so was entitled to use all the

Having these principles in mind, it will be observed that this action is not brought under the provisions of the code relative to forcible entry. It is an action brought purely for assault and battery, and is subject to the common-law rule as to such actions, which is that it is a complete defense to their maintenance, either for exemplary or actual damages, if it be shown that the injuries claimed to have been sustained by one wrongfully in possession, were sustained while the owner of the property was exercising a right to the possession of his land, although using force to obtain such possession, if no more force was employed than was necessary to accomplish it.

Referring first to the case of Canavan v. Gray, 64 Cal. 5 , [ 27 Pac. 788 ], the facts there presented this situation. The defendant Gray, who was the owner of a certain house in which plaintiff was wrongfully in the possession of certain rooms, caused the house to be unroofed and in so doing damaged the personal property of the plaintiff, who brought an action for the injury and obtained a verdict in her favor. The motion of the defendant for a new trial upon the ground of insufficiency of the evidence to sustain the verdict being denied, he appealed.

In disposing of the appeal this court said: “The vital question is, Can the plaintiff, upon these facts, maintain an action of trespass against the defendant? . . . All agree that at common law the plaintiff could not, upon the facts disclosed by this record, maintain any action whatever against the defendants. It is also conceded that the only change which has been made in the law relating to this subject is that made by the statute which, in this state as in many others, provides a summary remedy for forcible entry upon or into any real property. It is only as to the extent of the change wrought by this statute that there is any difference of opinion. . . . The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to the Code of Civil Procedure, but it establishes the law of this state respecting the subjects to which it relates and its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice. (Code Civ. Proc. sec. 4.) An action of forcible entry would be a proceeding under the code and its provisions relating to that subject, in such a proceeding, would have to be liberally construed. The code has established the law of the state respecting that subject. It had provided a remedy and prescribed a course of procedure in cases of forcible entry.

The other case to which we refer, and which reaffirms the doctrine of Canavan v. Gray, is the case of Burnham v. Stone, 101 Cal. 165 , [ 35 Pac. 627 ]. There an action was brought by plaintiff against a number of defendants to recover damages for the alleged killing of the wife of plaintiff, Jennie Bum-ham. Epitomizing the facts as much as possible, it appears that one of the defendants, Levi P. Stone, was the owner of several tracts, according to the government survey, of a section of land in San Diego County, upon one subdivision of which a dwelling-house and other buildings were situated. In his absence certain persons named Goings took possession of

It appears that the court instructed the jury, at the request of plaintiff, that in going upon the land for the purpose of obtaining possession by force, or. show of force, all the defendants were trespassers, and their entry unlawful, and because thereof, each defendant was liable for the killing of Mrs. Burnham, although the killing was not intended, contemplated, aided, abetted, or advised by him; that if he aided, abetted, or encouraged the unlawful entry upon the premises-it was sufficient to fix his liability, and that such entry was unlawful unless the writ of possession covered or included the premises where the homicide occurred.

In passing upon the correctness of this instruction, this, court said: “In view of a new trial and of the possibility that the writ does not refer to the buildings as a part of the-description of the land, it becomes necessary to consider the-instructions upon the supposition that the writ did not cover the premises from which it was attempted to evict the defendants in the writ.

“In such case the instructions were also erroneous. It is conceded that Levi P. Stone was the owner of the buildings- and premises where the homicide occurred, and that he had a.

right to the possession at that time. Mrs. Burnham made no claim that she was entitled to the possession. Her mother and brother were in possession, and the record shows that when the constable, after demanding that they vacate the premises the morning of the day before the homicide, and being met with a refusal, returned in the afternoon and found Mrs. Burnham there with the others in the house and the doors barred. She was also there when the constable and owner of the premises returned the next day with the posse, and at least aided and abetted her mother and brother in retaining possession. Under these circumstances, if she had survived, she could not have maintained an action for assault and battery, or for any injury she might have sustained in an endeavor of the owner to obtain possession, even if the effort were forcible.

“In Canavan v. Gray, 64 Cal. 5 , [ 27 Pac. 788 ], it was held that where the owner of real property having the right of possession makes a forcible entry, the person in wrongful possession cannot maintain an action of trespass, that the remedy provided by statute for a forcible entry is exclusive. . . .

“ ‘And the law, as generally adopted in the United States may be assumed to be substantially as laid down by Baron Parke. If the owner of land wrongfully held by another enter and expel the occupant, but make use of no more force than is reasonably necessary to accomplish this, he will not be liable to an action of trespass quare clausum, nor for assault and battery, nor for injury to the occupant’s goods, although, in order to effect such expulsion and removal, it becomes necessary to use so much force and violence as to subject him to indictment at common law for a breach of the peace, or under the statute for making forcible entry. ’ . . .

“The general ground upon which these authorities are based is that at common law trespass would not lie against the owner if he were entitled to the possession, as in such case the person in possession, being in wrongfully, could maintain no action against the owner, unless unnecessary force was used, and that the statutes of forcible entry and detainer having provided a remedy in such eases, that remedy is exclusive so far as the wrongful possessor is concerned; but the public being interested in preserving the peace may punish the owner

for resorting to force. Canavan v. Gray, 64 Cal. 5 , [ 27 Pac. 788 ], proceeds upon this ground.”

After citing a number of authorities from different jurisdictions in support of this rule, including Sterling v. Warden, 51 N. H. 252 , [ 12 Am. Rep. 80 ], where it is said: “It is clearly the English law, and as we believe the strongly preponderating opinion of the American courts, that no civil action lies against a landlord for regaining with force the possession of the demised premises, unless there is an excess of force, and then only for such excess,” our court then proceeds to an examination of the instructions referred to, and says: “In the light of these authorities the instruction that the entry upon the premises by force, or show of force, was unlawful, and that if appellant aided and abetted such entry that he was liable for the death of Mrs. Burnham, though he did not aid, abet, advise, or encourage the actual killing, is erroneous. No liability for damages was created against any of the defendants for the entry upon the land, nor for the expulsion, or attempted expulsion of the occupants by force, unless more force or violence was used than was reasonably necessary, and no such qualification appears in the instructions given to the jury. It is quite true that appellant did not, in his answer, plead the ownership and right of entry to Levi P. Stone. The case was tried, however, without any apparent reference to the issues made by appellant’s answer, and all the facts were given in evidence without objection or limitation. The court stated to the jury the substance of the comr plaint, that all the defendants, except Freeman, had answered denying the allegations of the complaint, and alleging that Mrs. Burnham and others acting with her first assaulted them; that they used no more force than was necessary to protect themselves from injury, and also alleged facts tending to justify themselves under the writ of restitution. The jury were expressly instructed that the question of the title to the land was not before them; that ‘admitting that Stone was the owner of the land, and that Mrs. Goings was wrongfully in possession of it, this gave Stone, or any one acting with or for him, no right to enter upon the land by force, or show of force, and take possession of it, or exclude or remove Mrs. Goings or any one else from the land; and if you find that the defendants went upon the land in the manner and for the

“Counsel for respondents suggest that the verdict being right upon the evidence, the judgment should not be reversed because of an erroneous instruction. That there are cases where the judgment should stand notwithstanding an erroneous instruction is not questioned; but where the erroneous instruction is such as to cut off a substantial defense on the merits the rule suggested can have no application. The case was not tried upon a theory which would justify this court in looking at the evidence to determine whether unnecessary force was used by defendants, and that became a vital question, assuming that the writ did not cover the premises upon which the entry was made by them.”

It is clear from these authorities that one who is in possession of real property without right cannot maintain an action of trespass on his person—assault and battery—against the owner of the property, having a right to its possession, or against those, acting at his instance or in his behalf, who make a forcible entry thereon to dispossess him, where no more force than is necessary is used to make the entry effective.

The defense interposed by the defendants here was that the Mt. Diablo Company had a right of entry upon the property in question as the owner thereof, and that they entered upon it on behalf of such owner in the exercise of such right. In support of the existence of this alleged right of entry and as a basis for its exercise, they were entitled to prove ownership of the property in the Mt. Diablo Company if they could do so, and the trial court in refusing to permit them to do it prevented them from making a defense which they had pleaded and which, if proven as pleaded, would have been a valid defense to the recovery of any damages by the plaintiff, either exemplary or actual.

It is claimed by the respondent that the principle of law declared by the authorities to apply to actions for assault and battery for injuries growing out of the exercise of the right of entry by the owner of land to dispossess those who are trespassers upon it, applies only between conflicting claimants to land; that the rule can have no application in a case where a mere employee (such as it is claimed respondent was)

It is further insisted on behalf of respondent, as we understand his brief on rehearing, that the judgment should not be disturbed, as far as it awarded actual damages, for any error in the admission of evidence of ownership of the land by the Mt. Diablo Company, because it clearly appears from the evidence that the force and violence used by defendants in making the entry upon the premises, and as a result of which plaintiff was injured, was so excessive, unnecessary, and unreasonable that the judgment would have had to be the same, whether evidence of ownership had been admitted or not. This proposition is doubtless made upon the theory that, this court might make the same alternative order on this appeal as did the district court of appeal. Undoubtedly this court could do so if a proper case was presented for such action. But, as was said in Burnham, v. Stone (as to a similar suggestion that the judgment there should be affirmed notwithstanding the error committed by the trial court) when the effect of the action of the trial court is to cut off a substantial defense upon the merits, the rule invoked has no application. The case at bar was tried on an erroneous theory which, as in the Burnham case, would not justify this court in.looking into the evidence to determine whether unnecessary force was used by defendants. Whether unnecessary force was used was a vital question under the pleadings in the

As to the last point made by appellants relative to the exclusion by the court of evidence that the Superior Sunset people were armed with deadly weapons when they came upon the property in question and were so armed while in possession and up to the night of the entry by defendants.

We think such evidence should have been admitted in connection with all the other circumstances attending the dispute over the possession of the property. Under the authorities cited, even if the Mt. Diablo Company had a right of entry to dispossess the Sunset people as trespassers, still the defendants acting in its behalf .would be justified in using only necessary force for that purpose and liable for any damages, the result of the use of excessive force. If the officers and the employees of the Superior Sunset Company entered into possession of the property armed, and remained armed, this fact would be proper to be taken into consideration in determining whether the defendants acted reasonably

This disposes of the only points on the appeal made before the district court of appéal or on rehearing here.

As the trial court erred in rejecting the evidence offered by the defendants on the matters we have discussed, the judgment and order appealed from are reversed, and a new trial ordered.

Sloss, J., Shaw, J., Angellotti, J., McFarland, J., and Henshaw, J., concurred.