Drummond v. Drummond

• Decision Date: 23 October 1924
• Docket Number: 6 Div. 45
• Citation: 102 So. 112,212 Ala. 242
• Parties: DRUMMOND v. DRUMMOND.
• Court: Alabama Supreme Court

102 So. 112

212 Ala. 242

DRUMMOND v. DRUMMOND.

6 Div. 45

Supreme Court of Alabama

October 23, 1924

Rehearing Denied Nov. 27, 1924

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Action by Josephine Drummond, as administratrix of the estate of Sam Drummond, deceased, against Freeman Drummond, for damages for the wrongful killing of plaintiff's intestate. Judgment for plaintiff, and defendant appeals. Affirmed.

Gray &amp Powell, of Jasper, for appellant.

Ray &amp Cooner, of Jasper, for appellee.

BOULDIN J.

The suit is for damages for death by wrongful act, brought under the Homicide Act. Code 1907, § 2486.

The complaint was amended by substituting new counts for the original counts, thus eliminating the original. Any ruling adverse to defendant on the original counts is immaterial.

The third count charges that the defendant "wrongfully caused the death of *** plaintiff's intestate, by wrongfully shooting him with a pistol." The fourth count charges the same, adding that "as a proximate consequence of which wrongful shooting plaintiff's intestate died." Both counts are good and not subject to demurrer. In cases under this statute where death is the result of negligence, a complaint should generally show such relation between the parties as to raise a duty from one to the other. Thereupon a general averment of negligence is sufficient to show a failure of duty. This should be followed by an averment that such negligence was the proximate cause of the injury. The counts before us charge direct trespass rather than case. If broad enough to cover a wrongful act resulting from negligence, they charge a violation of the common duty which all men owe to each other. Wrongfully causing the death of another by shooting him with a pistol whether intentionally or negligently, includes all the elements of duty violated and causal connection between the act and the fatal injury. Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882; Id., 208 Ala. 553, 94 So. 546; Massey v. Pentecost, 206 Ala. 411, 90 So. 866.

In setting up self-defense as justification in this form of action, all the elements of self-defense should appear in the plea. A plea showing the homicide occurred in the place of business of defendant need not negative the opportunity for retreat.

In setting forth the necessity, the presence of imminent danger to life or of grievous bodily harm, it may present real or apparent necessity in the alternative. Apparent necessity must be such as to impress a reasonable man of its presence and imminence, and must so impress the defendant at the time of the fatal shot. Otherwise, he does not fire the shot in the necessary protection of his person, but out of other motive, and there can be no self-defense. The ruling on demurrer to plea No. 2, necessitating the amendment filed thereto, imposed on defendant no higher burden in maintaining self-defense than the law requires. Plea No. 3, seeking to set off an indebtedness due from the decedent to defendant against a claim for damages for wrongfully causing decedent's death, is not good for the following reason, if not otherwise: The damages recoverable are not assets of the estate; the administrator is a mere trustee or representative of the next of kin in suing for their benefit. Code 1907, § 2486; Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882. There was no error in rulings on the pleadings.

Felix Gardner, a witness for plaintiff, was the only eyewitness to all or a part of the fatal difficulty. In a protracted cross-examination of Mr. Gardner, the defendant sought in many ways to show bias. Several assignments of error, earnestly argued, relate to rulings on this issue. In general, any fact which tends to show bias on the part of a witness is proper evidence. A wide latitude is allowed on cross-examination to develop such fact. The extent of such cross-examination, and especially the recalling of the witness for that purpose, is to a degree in the discretion of the trial court. The undue consumption of time in the trial of causes, and the avoidance of multiplied collateral issues tending to becloud the main issue before the jury, are matters necessarily committed in the first instance to the wise discretion of a trial judge. This discretion does not warrant the denial of the right to cross-examine the witness on matters directly affecting his interest or bias in the case.

Applying these principles in the case at bar, we think it sufficient to say:

The fact that the witness Gardner, on request of Jake Phillips, a kinsman of deceased, went to the solicitor's office and thence to the place of the homicide, made a full statement of the case and pointed out the location and movements of the parties, was not evidence of bias but a duty when called upon by public authority. The fact that the solicitor's office was locked for the purpose of a free and private interview was immaterial.

Evidence tending to show a lining up of a witness with one side, such as giving a full...