Greenwood Cafe v. Walsh

• Decision Date: 30 January 1917
• Docket Number: 6 Div. 142
• Citation: 15 Ala.App. 519,74 So. 82
• Parties: GREENWOOD CAFÉ v. WALSH.
• Court: Alabama Court of Appeals

74 So. 82

15 Ala.App. 519

GREENWOOD CAFÉ v. WALSH.

6 Div. 142

Court of Appeals of Alabama

January 30, 1917

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by J.L. Walsh against the Greenwood Café. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Charge B refused to defendant was as follows:

If, upon consideration of the whole evidence, the jury is reasonably satisfied from the evidence that plaintiff entered willingly into a fight with defendant, then, in that event plaintiff cannot recover.

The tenth proposition argued by appellant is to the overruling of defendant's objection to the introduction in evidence of certain photographs of plaintiff showing bandages, etc. The eleventh proposition is based upon the refusal of the court to allow the question to the witness Monroe, "When he ordered him out, what did he say?" referring to the fact that Greenwood had ordered Walsh's friend out of the café immediately after the difficulty with Walsh. The twenty-fifth and twenty-seventh assignments sufficiently appear. The 28th assignment of error is as follows:

Exception to the following portion of the court's oral charge: "If, under the circumstances, there are facts of aggravation, it rests within the sound discretion of the jury to award punitive damages, as distinguished from actual damages. No party can claim punitive damages as a matter of right. The jury can so regard a case as has things of that kind in it, facts of aggravation, and award punitive damages in addition to compensatory damages."

Erle Pettus, of Birmingham, for appellant.

Gibson & Davis, of Birmingham, for appellee.

PELHAM P.J.

This case should be styled "Arthur Greenwood, appellant, v J.L. Walsh, appellee," for the reason that, though the suit was originally against Greenwood Café a partnership composed of Arthur Greenwood, Spiro Greenwood and James Greenwood, individually, all parties except Arthur Greenwood were, under the pleadings, stricken as defendants, leaving the suit in the court below simply that of J.L. Walsh v Arthur Greenwood. After considerable pleading, not necessary to be stated, the cause was finally tried on count No. 3 which reads as follows:

"Count No. 3. Plaintiff claims of the defendants $10,000 as damages, for that heretofore, on, to wit, the 8th day of November, 1913, the defendants were engaged in the business of running and operating a public café in the city of Birmingham, Jefferson county, Ala., for the purpose of serving the public with food for a reward, that on said date the plaintiff was a customer in the defendants' said place of business, defendant Arthur Greenwood wrongfully or unlawfully committed an assault and battery on the plaintiff, so that as a proximate result

thereof the plaintiff's jawbone was broken, his neck badly bruised and sprained, a tooth was dislocated, and he was otherwise bruised, mashed, mangled, and injured in his head, face, limbs, and body, he was crippled and disfigured, was permanently crippled and disfigured, was rendered for a long time unable to work and earn money, was rendered for a long time permanently less able to work and earn money, was caused to suffer great physical pain and mental anguish, was caused to spend money for medicine and medical treatment in and about his efforts to heal and cure his said wounds and injuries, to wit, $132. All to plaintiff's damages aforesaid: hence this suit."

There are 28 assignments of error, which are argued in appellant's brief under 15 propositions. The first proposition advanced goes to the sufficiency of the complaint on attack by demurrer. The count of the complaint on which trial was had states a good cause of action, and was not subject to demurrer filed against it.

Charge B, which was refused by the court, on which the second proposition of appellant's brief is based, is bad in submitting a question of law to the jury, is otherwise faulty, and was substantially given in other charges of the court at appellant's request.

The third, fourth, fifth, sixth, seventh, eighth and ninth propositions of appellant's brief all refer to the court's refusal to give requested charges on self-defense. These refused charges are substantially covered by given charges 2, 13, and 14.

There is no merit in the tenth proposition argued by appellant, based on the objection to the introduction of certain photographs on the trial. These photographs, together with the testimony of the person who took them, were admissible for the purpose of reproducing the condition of the plaintiff (appellee) shortly after the alleged injuries. The photograph of the condition of the plaintiff shortly after the alleged injuries would be as effective in showing the jury his condition at that time as the testimony of a witness; in fact, a photograph would ordinarily be more reliable in showing the plaintiff's condition at the time taken than the description that might be given by any witness.

The eleventh proposition advanced as showing reversible error is not, we think, grounded on erroneous ruling of the court on the evidence. What the defendant said to McGann after the assault on appellee, and after appellee had left the place where the difficulty occurred, was clearly of no value in determining the relative rights between the parties to this suit; nor is it shown what was expected to be elicited by the question.

The twenty-fifth and twenty-seventh assignments of error, treated as the twelfth and thirteenth propositions of appellant's brief, are based on exceptions taken to the court's oral charge to the jury. The court, in its oral charge, stated:

"Now, there are four

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