Birmingham Macaroni Co. v. Tadrick

• Citation: 88 So. 858,205 Ala. 540
• Decision Date: 03 February 1921
• Docket Number: 6 Div. 83
• Parties: BIRMINGHAM MACARONI CO. v. TADRICK.
• Court: Supreme Court of Alabama

88 So. 858

205 Ala. 540

BIRMINGHAM MACARONI CO. v. TADRICK.

6 Div. 83

Supreme Court of Alabama

February 3, 1921

Rehearing Denied April 21, 1921

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action for assault and battery by Mrs. Carrie Tadrick against the Birmingham Macaroni Company. Judgment for plaintiff, and defendant appeals. Affirmed.

In an action for assault and battery by defendant's employees upon plaintiff under the most humiliating circumstances, and where the evidence justified the awarding of punitive damages, so that the jury was authorized to exercise a wide discretion, a verdict, awarding plaintiff $3,000 will not be disturbed as excessive.

Suit by appellee against appellant to recover damages for an assault and battery committed on her in November, 1917, by the servants and employés of the defendant corporation while acting in the line and scope of their employment. The cause was tried upon count 2 and the general issue thereon resulting in a judgment in the sum of $3,000 for the plaintiff, from which this appeal is prosecuted.

The evidence for the plaintiff tended to show: That she had previously been in the employ of the defendant corporation and went to the defendant's factory on the Saturday this trouble arose, which was the regular pay day for the employés. That one Serio was superintendent and in charge of the factory, and Mrs. Della Maxwell was "floor lady" for the company, having charge of the packing department, kept the time, hired and discharged the girls made up the pay rolls, and had placed the money in the envelopes, and was ready to pay off at the time of the difficulty, Serio having brought the money and left it with Mrs. Maxwell for that purpose. While Serio was over at the desk where Mrs. Maxwell was plaintiff asked him for her money, whereupon he replied, "You quit when you got good and ready, and I had a lot of trouble with you, and I will pay you when I get good and ready," and then cursed plaintiff, saying that he had had a lot of trouble with her, to which she replied that she had given him no trouble, but notified him the night before that she was going to quit. Plaintiff further said something about having to make a living for two besides herself, and concluded the sentence by saying, "They don't pay me $18 per week for sitting down." That thereupon Mrs. Maxwell jumped up and got her by the throat, and Serio, also getting up, said, "That's right; kick her out of here; and he then kicked her." When Mrs. Maxwell was pulled away from plaintiff, plaintiff started to run, Serio following her and catching her by the arm at the head of the stairway, saying, "If you don't quit hollering I will push you down these steps; I will kill you." Then, as plaintiff saw Mrs. Maxwell coming, she ran down the steps, Serio still following her, but Mrs. Maxwell turned back, and as she reached the door threw a weight at plaintiff, which struck her on the shoulder. The evidence further shows that as she got down the stairs, Serio still following her, one Stamps, who was also in the employ of the defendant, seeing the parties, called out to Serio, "If you touch this woman again, I will shoot your brains out;" and thereupon Serio stopped and paid the plaintiff the money that was due her. The plaintiff's neck was scratched, and blood running down. This was seen by Stamps, but Stamps was not present upstairs at the beginning of the difficulty. The defendant reserved exception to the court's action in overruling objections to the declarations made by Stamps. Plaintiff's testimony was corroborated by that of Mrs. Minnie Dickerson, who was not in the employ of the defendant.

The defendant's testimony was in sharp conflict with that of plaintiff, and showed a difficulty between plaintiff and Mrs. Maxwell brought on by abusive and insulting language used by plaintiff to Mrs. Maxwell, which provoked resentment. Defendant's testimony further tended to show that Serio did not kick or abuse plaintiff, but merely acted as peacemaker; that while he followed the plaintiff down the stairs, he was merely looking after her, to have her given a towel to wipe her face. Witnesses for the defendant consisted of Serio, Mrs. Maxwell, Lula Sweet, Stella Faulkner, and Mrs. Kate Nash, each of whom was in the employ of the defendant company at the time.

Motion was made for new trial upon the ground that the verdict was contrary to the weight of the evidence, and also newly discovered evidence, in that defendant's counsel was taken by surprise as to the testimony relating to the declarations testified to have been made by Stamps, to the effect that he did not make such declarations, and of counsel to the effect that upon his original investigation of the cause he talked with the employés- es of the defendant company, including Stamps, who said that he knew nothing about what transpired upstairs, as he was downstairs, and that Stamps did not inform him (affiant), or in any way intimate a knowledge on his part, of any facts in any wise connected with the testimony by Mrs. Dickerson or the plaintiff, and therefore Stamps was not subpoenaed as a witness.

This cause was tried on December 3, 1919. Counter affidavits were offered by the plaintiff to the effect that on March 26, 1919, the case of this plaintiff against Pete Serio for damages growing out of this assault was tried in said circuit court, resulting in a mistrial. Defendant's counsel in that case represented the defendant in this case, which shows that the declarations made by Stamps were offered in evidence on that trial, together with much argument between counsel as to the relevancy of the same; that Stamps had been summoned as a witness in the case, but was not present, and that counsel for plaintiff never heard that defendant wanted Mr. Stamps in the trial of this cause until the same was made a ground for the motion for new trial; and that there has been no trouble with reference to serving Stamps as a witness. Plaintiff also offered her own affidavit as to a conversation had with Stamps at the time he was first summoned for the trial in the suit against Pete Serio.

The motion for a new trial was denied. The defendant requested a charge to the effect that no damages could be recovered by the plaintiff on account of the assault committed by Mrs. Della Maxwell, which was refused.

Tillman, Bradley & Morrow, Charles E. Rice, and T.A. McFarland, all of Birmingham, for appellant.

B.M. Allen and Black & Harris, all of Birmingham, for appellee.

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