Barlow v. Hamilton

• Decision Date: 02 July 1907
• Citation: 151 Ala. 634,44 So. 657
• Parties: BARLOW ET AL. v. HAMILTON.
• Court: Alabama Supreme Court

44 So. 657

151 Ala. 634

BARLOW ET AL. v. HAMILTON.

Supreme Court of Alabama

July 2, 1907

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Action by J. N. Hamilton against John H. Barlow and others for assault.From a judgment in favor of plaintiff against defendants Barlow and Hasleum, they appeal.Reversed and remanded.

The first count is in Code form for assault and battery.The second count is as follows: "The plaintiff claims of the defendant $5,000 damages, for that the said defendants on, to wit, the 1st day of March, 1905, assaulted said plaintiff at Piedmont, Ala., and then and there seized and laid hold of the plaintiff, and with great force and violence pulled and dragged about the said plaintiff, and also then and there forced and compelled plaintiff to go from out of a hotel in the town of Piedmont into the public streets there, and then and there forced and compelled plaintiff to go along divers public streets to a certain cotton mill situated and being in the county of Calhoun, without any reasonable or probable cause whatever, and against the will of the plaintiff whereby said plaintiff was then and there not only greatly hurt, but was also thereby then and there greatly exposed and injured in his credit and circumstances, to the damage of the plaintiff as aforesaid."The plea was not guilty.

The facts and exceptions to evidence were sufficiently stated in the bill of exceptions.The defendants requested the following charges, which were refused by the court: "(3) If the jury believe from the evidence that the defendants called Hamilton to the door for a purpose not unlawful, and did him no violence, and that Hamilton went with them without force or compulsion, then the jury must find the issues in favor of the defendants.(4)The court charges the jury that if they should find the issues in favor of the plaintiff, the plaintiff is not entitled to exemplary or punitive damages."

The motion for new trial was based upon errors in the objection of testimony noted in the opinion, and the refused charges.There was judgment for plaintiff against two of the defendants, and they appeal.

Knox Acker & Blackmon, for appellants.

Blackwell & Agee and W. L. Brock, for appellee.

DENSON J.

This is an action sounding in damages for an assault and battery alleged to have been committed on the plaintiff by the defendants, John H. Barlow, John Hasleum, John Sewell, and Bud Baxter.A verdict was rendered, finding the defendants Sewell and Baxter not guilty, and the defendants Barlow and Hasleum guilty, and assessing damages in the sum of $750.The judgment appealed from follows the verdict.

The only plea was the general issue--not guilty.Under the issue thus made, evidence tending to show the commission of the assault, or that it was not committed, the injury, if any, and the extent of it, and the circumstances attending the assault, was competent and relevant.But evidence of justification was not.Lunsford v. Walker,93 Ala. 36, 8 So. 386;Mitchell v. Gambill,140 Ala. 316, 37 So. 290.

Plaintiff's witness, McCarty, testified that he saw the defendants Barlow and Hasleum take plaintiff by his arms and walk with him out of the house where plaintiff was, and up the street, and the defendants Sewell and Baxter walking along behind them.On cross-examination the defendants' counsel asked the witness: "Did the defendants hurt Mr. Hamilton?"The witness replied: "I suppose plaintiff's feelings were hurt.It would have hurt my feelings."Defendants' counsel then asked the witness this question "Mr. Hamilton didn't look like he was hurt, did he?"The court sustained an objection to this question.In this ruling the court committed reversible error.Whether or not there was physical injury done the plaintiff, and, if there was, the extent of it, is one of the elements of damages under the second count; and, there being evidence tending to show that two of the defendants laid hands on the plaintiff, it was entirely competent for the defendants to offer evidence the tendency of which would be to repel the inference of injury.Patently, this was the purpose of the question to which objection was sustained....