Berkowitz v. Farrell

• Citation: 19 Ala.App. 196,95 So. 916
• Decision Date: 10 April 1923
• Docket Number: 6 Div. 145.
• Parties: BERKOWITZ v. FARRELL.
• Court: Alabama Court of Appeals

95 So. 916

19 Ala.App. 196

BERKOWITZ v. FARRELL.

6 Div. 145.

Court of Appeals of Alabama

April 10, 1923

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action by Ada Farrell against Harry Berkowitz. From a judgment for plaintiff, defendant appeals. Affirmed.

Wm. A Jacobs, of Birmingham, for appellant.

Brown &amp Denson, of Birmingham, for appellee.

BRICKEN P.J.

This is an action by the appellee against appellant for damages alleged to have resulted from the tortious conduct of the defendant in entering the plaintiff's home and cursing and abusing and insulting her, and from an assault and battery committed by the defendant on the plaintiff.

The complaint as originally filed consisted of two counts. After demurrer was sustained to these counts, the complaint was amended by adding four additional counts. The judgment on demurrer made the predicate for the first four assignments of error is in these words:

"On this the 16th day of May, 1922, this cause being reached on the docket, and called for trial, comes the parties by their attorneys, and the demurrers to counts 1 and 2 are by the court heard and considered. Whereupon it is ordered and adjudged by the court that said demurrers be and they are hereby sustained. Plaintiff by leave of the court amended the complaint as appears by a separate paper this day filed; the demurrers to the amended complaint are by the court heard and considered, whereupon it is ordered and adjudged by the court that said demurrers be and they are hereby overruled."

The only demurrer incorporated in the record is the demurrer "to the complaint and each count thereof," and this demurrer does not appear to have been refiled to the complaint as amended. Construing the judgment entry in accordance with the many adjudged cases the assignments of error, for the reasons stated, are not sustained. Central of Ga. Ry. Co. v. Ashley, 159 Ala. 145, 48 So. 981; Syson Timber Co. v. Dickens, 146 Ala. 471, 40 So 753; Alabama Chemical Co. v. Niles, 156 Ala. 298, 47 So. 239; Berger v. Dempster, 204 Ala. 305, 85 So 392; Carland & Co. v. Burke, 197 Ala. 435, 73 So. 10; Central of Ga. Ry. Co. v. Hingson, 186 Ala. 40, 65 So. 45; Griel v. Lomax, 86 Ala. 132, 5 So. 325; Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796.

The plaintiff offered evidence tending to show that the defendant entered the plaintiff's home, uninvited, and with force and there in her presence used abusive, insulting, and profane language to her, and also offered evidence tending to show that defendant, on another occasion while plaintiff was in his store, committed an assault and battery on plaintiff. The credibility of this evidence was for the jury and justified the refusal of the affirmative charge on the case as a whole and as related to the several counts of the complaint. Code 1907, §§ 6217 and 7827 Engle v. Simmons, 148 Ala. 92, 41 So. 1023 7 L. R. A. (N. S.) 96, 121 Am. St. Rep. 59, 12 Ann. Cas. 740; Adams v. Rivers, 11 Barb. (N. Y.) 390; 26 R. C. L. p. 934, note 6.

The trial judge was in a better situation to judge the credibility of the witness than we are, and we do not think that this is a case where we are justified in holding that it was error to overrule the motion for new trial. Southern Ry. Co. v. Kirsch, 150 Ala. 659,...