Brown v. Patterson, 7 Div. 568

CourtSupreme Court of Alabama
Writing for the CourtBOULDIN, J.
Citation108 So. 16,214 Ala. 351
Decision Date25 March 1926
Docket Number7 Div. 568
PartiesBROWN v. PATTERSON.

108 So. 16

214 Ala. 351

BROWN
v.
PATTERSON.

7 Div. 568

Supreme Court of Alabama

March 25, 1926


Appeal from Circuit Court, Clay County; E.S. Lyman, Judge.

Action for damages for assault and battery by J.W. Brown against Arthur Patterson. From a judgment for defendant, plaintiff appeals. Affirmed.

Walter S. Smith, of Lineville, for appellant.

C.W. McKay, of Ashland, for appellee.

BOULDIN, J.

The single question presented by the record is: In a civil action of assault and battery, may the defendant plead in recoupment damages for assault and battery committed by the plaintiff at the same time and as a part of the same transaction? Stated differently, if parties fight willingly or under other conditions wherein neither party can justify himself in this form of action, can the one recoup for his injuries when sued by the other; or, if suit be brought against one justified under the law, may he by plea of recoupment present his cross-action and recover in the one suit?

By the nature of this action, and the defenses applicable thereto, it may happen that neither party can successfully defend when sued by the other; neither, for example, be entitled to justify under the law of self-defense. Cases of initial assault by one, met [108 So. 17.] with excessive resistance by the other, opprobrious words by one not justifying an assault by the other, but still placing the user in fault in provoking the difficulty, if sued by the other, engaging willingly in a fight, are instances wherein each party may maintain an action against the other. Unlike many forms of action, the defendant cannot defend on the ground that the plaintiff was also in fault. Powell v. West, 94 So. 475, 208 Ala. 388; Rardan v. Maddox, 39 So. 95, 141 Ala. 508; Mitchell v. Gambill, 37 So. 290, 140 Ala. 316; Bynum v. Jones, 59 So. 65, 177 Ala. 431; Morris v. McClellan, 53 So. 155, 169 Ala. 90; Morris Hotel Co. v. Henley, 40 So. 52, 145 Ala. 678; Abney v. Mize, 46 So. 230, 155 Ala. 391; Logan v. Austin, 1 Stew. 476; 2 R.C.L. p. 574,§ 55.

The question, then, recurs: Must there be two suits trying the same issues, or may the whole affair be settled in one suit by plea of recoupment or cross-action? The action of assault and battery is one sounding in damages. Johnson v. Aldridge, 9 So. 513, 93 Ala. 77; Rosser v. Bunn, 66 Ala. 89; Holley v. Younge, 27 Ala. 203. Hence it is not within our statute of set-off, excluding demands "sounding in damages merely." Code, § 10172. Set-off, authorizing...

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15 practice notes
  • A.B.C. Truck Lines v. Kenemer, 6 Div. 391.
    • United States
    • Supreme Court of Alabama
    • March 28, 1946
    ...Louisville & N. R. Co. v. Orr, 121 Ala. 489, 26 So. 35; Alabama Power Co. v. Kendrick, 219 Ala. 692, 123 So. 215; Brown v. Patterson, 214 Ala. 351, 108 So. 16, 47 A.L.R. 1093. These considerations, however, are not immanent in the present discussion and are completely dehors the issue p......
  • Fidelity-Phenix Fire Ins. Co. of New York v. Murphy, 1 Div. 731.
    • United States
    • Supreme Court of Alabama
    • January 19, 1933
    ...claims available by way of recoupment. Hatchett v. Gibson, 13 Ala. 587; Grisham v. Bodman, 111 Ala. 194, 20 So. 514; Brown v. Patterson, 214 Ala. 351, 108 So. 16, 47 A. L. R. 1093; 37 Corpus Juris 435. [146 So. 391] But it is always immaterial what the plea denominates its character, for th......
  • Gaines v. Wolcott, No. 43991
    • United States
    • United States Court of Appeals (Georgia)
    • February 21, 1969
    ...20 L.R.A., N.S., 907, 17 Ann.Cas. 1047 (1909); Royer v. Belcher, 100 W.Va. 694, 131 S.E. 556, 47 A.L.R. 1089 (1926); Brown v. Patterson, 214 Ala. 351, 108 So. 16, 47 A.L.R. 1093 (1926); and see annotations, collecting many cases, in 17 Ann.Cas. 1050, 6 A.L.R. 388 (1920), 30 id. 199 (1924), ......
  • Bell v. Jones, 3 Div. 973.
    • United States
    • Supreme Court of Alabama
    • June 25, 1931
    ...from collision is definitely established by the general authorities and by the recent decisions of this court. Brown v. Patterson, 214 Ala. 351, 108 So. 16, 47 A. L. R. 1093; Alabama Power Co. v. Kendrick, 219 Ala. 692, 123 So. 215. And the suit of Bell in Montgomery county was an election ......
  • Request a trial to view additional results
15 cases
  • A.B.C. Truck Lines v. Kenemer, 6 Div. 391.
    • United States
    • Supreme Court of Alabama
    • March 28, 1946
    ...927; Louisville & N. R. Co. v. Orr, 121 Ala. 489, 26 So. 35; Alabama Power Co. v. Kendrick, 219 Ala. 692, 123 So. 215; Brown v. Patterson, 214 Ala. 351, 108 So. 16, 47 A.L.R. 1093. These considerations, however, are not immanent in the present discussion and are completely dehors the issue ......
  • Fidelity-Phenix Fire Ins. Co. of New York v. Murphy, 1 Div. 731.
    • United States
    • Supreme Court of Alabama
    • January 19, 1933
    ...claims available by way of recoupment. Hatchett v. Gibson, 13 Ala. 587; Grisham v. Bodman, 111 Ala. 194, 20 So. 514; Brown v. Patterson, 214 Ala. 351, 108 So. 16, 47 A. L. R. 1093; 37 Corpus Juris 435. [146 So. 391] But it is always immaterial what the plea denominates its character, for th......
  • Gaines v. Wolcott, No. 43991
    • United States
    • United States Court of Appeals (Georgia)
    • February 21, 1969
    ...20 L.R.A., N.S., 907, 17 Ann.Cas. 1047 (1909); Royer v. Belcher, 100 W.Va. 694, 131 S.E. 556, 47 A.L.R. 1089 (1926); Brown v. Patterson, 214 Ala. 351, 108 So. 16, 47 A.L.R. 1093 (1926); and see annotations, collecting many cases, in 17 Ann.Cas. 1050, 6 A.L.R. 388 (1920), 30 id. 199 (1924), ......
  • Bell v. Jones, 3 Div. 973.
    • United States
    • Supreme Court of Alabama
    • June 25, 1931
    ...from collision is definitely established by the general authorities and by the recent decisions of this court. Brown v. Patterson, 214 Ala. 351, 108 So. 16, 47 A. L. R. 1093; Alabama Power Co. v. Kendrick, 219 Ala. 692, 123 So. 215. And the suit of Bell in Montgomery county was an election ......
  • Request a trial to view additional results

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