Birmingham Ry., Light & Power Co. v. Coleman

• Citation: 61 So. 890,181 Ala. 478
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. COLEMAN.
• Decision Date: 24 April 1913
• Court: Supreme Court of Alabama

61 So. 890

181 Ala. 478

BIRMINGHAM RY., LIGHT & POWER CO. v. COLEMAN.

Supreme Court of Alabama

April 24, 1913

Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.

Action by Belton W. Coleman against the Birmingham Railway, Light &amp Power Company for assault and battery. Judgment for plaintiff, and defendant appeals. Affirmed.

At the request of plaintiff the court gave the following charges:

"(3) The court charges you, gentlemen of the jury, that there is no justification shown by the evidence in this case for the use of any abusive language by the conductor towards the plaintiff.

"(4) The court charges you that the assault with a pistol on plaintiff by the conductor, which the undisputed evidence in this case, if you believe it, shows was committed cannot be justified so as to relieve defendant from liability to its passenger therefor, unless you find: First, that the conductor was free from fault in bringing on the difficulty, if there was a difficulty; Second, that it appeared to the conductor reasonably, and not merely fancifully, that it was reasonably necessary to assault plaintiff in order to protect his own charges, or the person of another passenger, and that the means adopted by the conductor were in kind and degree no more than was reasonable for such protection, and the court charges the jury that the burden of proving its plea of justification is on the defendant."

The following charge was refused to the defendant:

"(5) If you believe from the evidence that the plaintiff is entitled to recover, you may award him no more than nominal damages, if in the exercise of the sound discretion you believe this sufficient."

Tillman, Bradley & Morrow and L.C. Leadbeater, all of Birmingham, for appellant.

Harsh, Beddow & Fitts, of Birmingham, for appellee.

DE GRAFFENRIED, J.

Belton W. Coleman brought this suit against the Birmingham Railway Light & Power Company, which operates a line of street cars in the city of Birmingham, to recover damages which said Coleman claims he sustained on account of certain abusive language which it is alleged was used towards him, and on account of an alleged assault with a pistol which was made upon him by a conductor of said Birmingham Railway, Light & Power Company while said Coleman was a passenger on one of its street cars.

There were two counts to the complaint. The first count charged the abusive language, and the second count charged the assault with the pistol.

There was the plea of the general issue, and also a special plea. This special plea, the appellant contends, was filed to both counts. The special plea was treated by the court below, and, as we read the plea, was properly treated by the court below as a plea to the second count only.

1. The facts show, beyond doubt, that appellant's conductor did present a pistol at close range at the appellee, and they also show that when he did so he applied certainly one abusive epithet to appellee.

In civil, as distinguished from criminal, actions, an intent to injure is not essential to the liability of the person committing the assault. Carlton v. Henry, 129 Ala. 479, 39 So. 924; McGee v. State, 4 Ala.App. 54, 58 So. 1008. "In fact, we think that at times courts have fallen into error in applying, or in attempting to apply, the rules applicable only to civil actions for assaults and batteries or trespass to the person to the facts in criminal prosecutions." McGee v. State, supra; Thomason v. Gray, 82 Ala. 291, 3 So. 38; Chapman v. State, 78 Ala. 463, 56 Am.Rep. 42.

Under the evidence of the conductor in this case (and his evidence was the most favorable evidence which was introduced on behalf of the appellant), the conductor committed an assault upon the appellee for which the appellant is civilly liable unless the conductor was free from fault in bringing on the difficulty or trouble which resulted in his presenting his pistol at the appellee and unless, also, at the time he so presented the pistol, it reasonably appeared to the conductor that it was necessary for him to do so to protect his own person from a battery at the hands of appellee.

In the case of Birmingham Railway & Electric Company v Baird, 130 Ala. 334, 30 So. 456, 54 L.R.A. 752, 89 Am.St.Rep. 43, this court, referring to the right of a conductor in charge of a passenger train of a common carrier to assault a passenger on such train, said: "He cannot assault a passenger in retaliation for an assault committed upon himself or upon another passenger, and a fortiori he cannot assault a passenger for abusive words, or in revenge or punishment under any circumstances, and if he does assault a passenger otherwise than under a necessity to defend himself or a passenger from battery, or in rightfully ejecting a passenger who, by his conduct toward other passengers, has forfeited his right of carriage, the carrier is liable. The fault of the passenger short of producing a necessity to strike in self-defense will neither justify the conductor in striking nor relieve the carrier from liability for his act. Possibly such fault could be considered in mitigation of damages." Ala. City, G. & A....