Seigel v. Long
Citation | 53 So. 753,169 Ala. 79 |
Parties | SEIGEL v. LONG. |
Decision Date | 08 December 1910 |
Court | Supreme Court of Alabama |
Appeal from Circuit Court, Perry County; B. M. Miller, Judge.
Action by Jerome Seigel against Thomas Long. Judgment for defendant and plaintiff appeals. Reversed and remanded.
Charge 2, referred to in the opinion, was the affirmative charge.
Arthur M. Pitts, for appellant.
W. F Hogue, for appellee.
Appellant sued appellee for an assault and battery. The first count of the complaint was in Code form. The plaintiff's evidence made out a case of inexcusable and rude assault. The defendant's evidence likewise made a case of assault though one of less insolence and rudeness than that which plaintiff's evidence tended to prove; nevertheless it proved the first count of the complaint, and failed to prove the pleas which were the general issue. The plaintiff was therefore clearly entitled to the general affirmative charge as to the first count, as was requested by him, for nominal damages.
The defendant's account of the rencounter, so far as pertains to the assault and battery vel non, was as follows:
It is true that defendant's testimony tended to show that defendant made a mistake as to the identity of the party whom he assaulted, and he told plaintiff that, if he was not the person who frightened his team, he owed him an apology; but this did not prevent what he did from being an assault and battery. It was an assault and battery, with or without mistaken identity. Carter v. State, 87 Ala. 113, 6 So. 356.
It was likewise no defense that defendant offered to apologize after the assault, if he made a mistake as to the identity of the person...
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