Harris v. Harris

• Decision Date: 01 May 1924
• Docket Number: 8 Div. 646.
• Citation: 211 Ala. 222,100 So. 333
• Parties: HARRIS v. HARRIS.
• Court: Alabama Supreme Court

100 So. 333

211 Ala. 222

HARRIS v. HARRIS.

8 Div. 646.

Supreme Court of Alabama

May 1, 1924

Appeal from Circuit Court, Marshall County; Leon McCord, Judge.

Action for damages for assault and battery by Mollie Harris against John Luther Harris. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under Acts 1911 p. 449, § 6. Reversed and remanded.

Street & Bradford, of Guntersville, for appellant.

John A Lusk, of Guntersville, for appellee.

MILLER J.

The appellee, Mollie Harris, brings this suit against John Luther Harris, her husband, for damages for an assault and battery committed by him on her wrongfully and unlawfully. There was judgment for the plaintiff on verdict in her favor by the jury, and this appeal is prosecuted therefrom by the defendant.

The complaint, demurrers to it, pleas, replication and demurrers to it, and the several rulings of the court thereon, oral charge of the court, written charges given by the court at the request of each party, and written charges refused to the appellant, appear twice in the transcript, once in the record proper and again in the bill of exceptions. The appellee files motion to strike them from the bill of exceptions. These matters should be incorporated in the record proper and not in the bill of exceptions. Section 5364, as amended Gen. Acts 1915, p. 815; Beck v. West, 91 Ala. 312, 9 So. 199; Powell v. Henry, 96 Ala. 412, 11 So. 311; Rule 26 of Supreme Court. Neither this rule nor the act prohibits their incorporation in the bill of exceptions. The appellee is not injured by it, except, if she fails in this appeal, this would increase the cost thereof in making the record, and probably on proper application the appellant should be taxed with this part at least of the court cost. This part of the motion to strike them from the bill of exceptions is refused.

The appellee also files motion to strike from the bill of exceptions the motion for a new trial because it was not sufficiently identified and designated in the bill of exceptions as the matter to be incorporated in the blank place. The bill of exceptions states:

"There was judgment of the court in favor of plaintiff for $250, a judgment of the court thereon, and to set aside which and to grant a new trial the following motion in writing was made by defendant, submitted to the court, was overruled by the court, and defendant duly excepted."

The bill of exceptions then states:

"Said motion is as follows: [The clerk will set out the motion appearing on the motion docket.]"

There is attached to the original bill of exceptions, which is before us, at or near this place therein, a copy of this motion for new trial, the ruling of the court thereon, and it is the same as the motion appearing in the transcript. From this copy of the motion in the bill of exceptions and from the description of the motion therein, we must hold the motion for new trial was sufficiently identified, so the clerk could readily decide what document [motion] was intended to be inserted in the blank place unaided by memory. The motion to strike it from the bill of exceptions is refused. Fuller v. Fair, 206 Ala. 654, 91 So. 591.

The complaint alleges that defendant "did wrongfully and unlawfully beat and cruelly treat, bruise, wound, and injure the plaintiff." It more than complies with form No. 18, p. 1198 of the Code of 1907, which is sufficient under the statute. Section 5382, Code 1907. The words therein "cruelly treat," alleged conjunctively with the words "beat, bruise, wound, and injure," did not render the entire count demurrable. The count states a cause of action, and the court did not err in overruling the demurrers of defendant to it. Form 18, p. 1198, Code 1907; Irby v. Wilde, 150 Ala. 402, 43 So. 574.

The defendant pleaded general issue and special plea 2, which alleged that plaintiff, without the knowledge or consent of defendant, wrongfully took from the defendant the possession of his infant child, was fleeing from defendant's home with the child, and the defendant immediately after learning of it pursued and overtook her while still in flight, and did then and there retake the child from plaintiff, and in doing so employed no more force than was reasonably necessary to regain possession of the child, and that he used such force in a reasonable manner.

The sufficiency of this plea [No. 2] was not challenged by the plaintiff by demurrer. She did not even join issue on it, so we cannot discuss it. She replied to it, and for replication says:

"That she was the mother of the child mentioned therein, which was an infant girl child of less than three years of age, and the plaintiff was then and there in peaceable possession of said child."

Demurrers of defendant to this replication to plea 2 were overruled by the court, and as to this there was no error in overruling the grounds assigned to it.

The plaintiff is the wife of the defendant. They had one child, the girl of three years of age. They separated, the wife leaving his home. She had a daughter by a former marriage, and he had a daughter by a former marriage. The plaintiff with her daughter went to his home, got this little child of theirs, and was going away with it in a buggy drawn by a mule, and the father (defendant), upon hearing of it, took his daughter, went in an automobile in pursuit of this child, and overtook them while traveling in the buggy on the public road, the child being held by the plaintiff (the mother). He caught hold of the child and took it from the mother and carried it back to his home, and then into De Kalb county.

The evidence for the plaintiff tended to show when the defendant overtook her he stopped his car, and he and is daughter got out, and he grabbed the bridle of the mule, snatched at plaintiff and the child, and "grabbed hold of us, slammed us backward and forward in the buggy," and jerked plaintiff and the child from the buggy. During this time his daughter was holding plaintiff's daughter. The arm and breast of plaintiff was bruised by him. The evidence for defendant tended to show that when he reached the buggy of plaintiff she took the child in her lap, and said "Let this baby alone;" and he took hold of the child under its arms and shoulders, and pulled her out of her mother's arms, without slamming or jerking either the child or the mother, and carried it back to his home. The evidence of defendant also tended to show that he did not touch plaintiff or bruise her.

The court properly permitted the plaintiff to prove that the child said "Hold me, mama, hold me, mama! he hurt my sore head; he is going off with me"-and, further, that the daughter of defendant said: "Turn that baby loose; papa said he would kill it before he left home." These statements were made in the presence of the parties, in their hearing, and during the struggle for the child. It was a part of the res gestæ, and competent evidence to be considered by the jury. It is directly connected with the main transaction. Young v. State, 149 Ala. 16, 43 So. 100; Raymond v. State, 154 Ala. 1, 45 So. 895.

The plaintiff on cross-examination of the defendant asked him the following question: "You did not stop to see whether you hurt her?" He answered, "I went on; I knew I had not hurt her." The court on motion of plaintiff then excluded this: "I knew I had not hurt her"-and the defendant duly excepted. The court would not permit defendant's attorney to ask the defendant, "Did you hurt the woman or not?" or "Did you injure Mrs Harris in any way on that occasion?" The questions called for facts. The witness answered he "knew he had not hurt her." These were facts probably within his knowledge and observation. It was capable of being known to him. The complaint alleged the defendant did beat, bruise, wound, and injure plaintiff. The plaintiff testified he jerked her out of...