Bynum v. Jones

• Citation: 59 So. 65,177 Ala. 431
• Parties: BYNUM v. JONES.
• Decision Date: 28 May 1912
• Court: Supreme Court of Alabama

59 So. 65

177 Ala. 431

BYNUM v. JONES.

Supreme Court of Alabama

May 28, 1912

Appeal from Circuit Court, Blount County; A. H. Alston, Judge.

Action by Joe Bynum against Joe L. Jones. Judgment for defendant and plaintiff appeals. Reversed and remanded.

J. B Sloan and T. B. Russell, both of Oneonta, for appellant.

O. A Steele, of Oneonta, for appellee.

MAYFIELD J.

This action was brought by the appellant against the appellee for assault and battery. The complaint was in Code form. The defendant pleaded the general issue, and specially self-defense. The plaintiff demurred to the special pleas and the demurrers were overruled.

The assignments of error, and the insistence in brief, as to rulings on demurrer, are not sufficient to justify a consideration by us on this appeal. A trial was had on these issues, and the court directed a verdict for the defendant; that is, it gave the affirmative charge, with appropriate hypothesis, for the defendant.

The evidence showed an assault and battery by the defendant with an ax. It was without conflict, however, that the plaintiff provoked the difficulty by words, and the parties thereafter fought willingly; the defendant coming out victor and "on top." We suppose that it was upon the theory that the plaintiff provoked the difficulty that the trial court gave the affirmative instruction for the defendant. In this we think the trial court was in error. It was certainly a question for the jury whether the defendant used any more force than was necessary to defend himself. It was open to the jury to infer that he used more than was necessary, and was therefore liable, although the plaintiff provoked the difficulty.

Mr Jaggard states the rule thus as to self-defense in civil actions for assault and battery: "Force used in private defense must not exceed the necessity of the case. Defense is not attack. Excessive defense may become an assault and battery. 'In an action for assault and battery, to which the defendant pleads that the plaintiff first assaulted the defendant, who thereupon committed the alleged assault in his own defense, the plaintiff may show that, although he struck the first blow, the defendant was guilty of excess. * * * The old form of defendant's plea, "molliter manus imposuit," * * * shows also the full extent to which the law allows a man to defend himself from an unprovoked assault.' Therefore, in an action for assault, where it...