Harrison v. Mitchell
| Decision Date | 17 December 1980 |
| Citation | 391 So.2d 1038 |
| Parties | Jimmy HARRISON and Ruth Harrison v. Johnnie L. MITCHELL. Civ. 2305-X. |
| Court | Alabama Court of Civil Appeals |
George E. Carpenter and Stanley E. Munsey of Rosser & Munsey, Tuscumbia, for appellants.
John O. Morrow, Jr. of Wilson & Morrow, Florence, for appellee.
Defendant, Jimmy Harrison, appeals from a judgment in the amount of $5,000 plus interest for an assault and denial of his motion for mistrial, and for judgment n. o. v. or, in the alternative, a new trial. Plaintiff, Johnnie L. Mitchell, cross-appeals from the order of the court granting a directed verdict in favor of defendant as to plaintiff's slander of title count in his complaint.
The facts show that David Harris and his wife had entered into a contract to buy four acres of land in Lauderdale County from Johnnie Mitchell and his wife for $12,000. Sometime afterward the Harrises, along with some friends, went to the site of the property to look it over. While there, defendant Harrison walked up to the truck where Mrs. Harris was sitting and asked what they were doing there. She replied that they were planning to buy the property and they were looking it over. Harrison told her and her husband and Mr. Tate, one of the friends, that the property belonged to him and not to Mitchell.
Several weeks later Mitchell and Harris, the prospective purchaser, went to the site of the property where they were to meet a surveyor who had been engaged to survey the property in accordance with Mitchell's warranty deed. While parked in the road in front of the subject property and before the surveyors arrived, Mitchell and Harris observed Harrison walk out of his house and walk toward them.
Mitchell informed Harrison that he was about to have the property lines surveyed. Harrison replied that no one, including Mitchell, would enter his property for that purpose. Mitchell and Harris started walking toward their car and Harrison walked back to his house. Upon reaching the car Harris told Mitchell, whose back was to Harrison's house, that Harrison was coming toward them with a shotgun. While walking toward Harris and Mitchell, Harrison was loading the shotgun.
Mitchell told Harris to go to a phone and call the sheriff and then Mitchell walked down the road toward Harrison. When they were about thirty or forty feet apart, with Mitchell in the road and Harrison on his property, an acrimonious conversation ensued, during which Harrison leveled his shotgun at Mitchell and said, "You sorry son-of-a-bitch, I'll kill you right now." He repeated that the property in question was his and no one was going on it to survey it or do anything else to it.
Mitchell did not attempt to leave the scene or to disarm Harrison, but he did talk to him. Finally Harrison went back to his house and reappeared without his shotgun.
Shortly afterwards the police chief from a nearby town arrived and Harrison walked back down to where Mitchell and Harris were in the road. The policeman talked to Harrison and Mitchell and then left. Mitchell and Harris were the last to leave.
The survey was not made until several months later and in the meantime the Harrises had asked Mitchell to be released from the contract to purchase. They were released and their earnest money refunded.
Mitchell filed an action against Harrison in May 1979 for assault and slander of title to real estate. Trial was had before a jury. At the conclusion of plaintiff's case defendant moved for a directed verdict as to both counts of the complaint. The court denied the motion as to the assault count and granted it as to the slander of title count; and, after evidence from defendant and rebuttal from plaintiff, the case went to the jury on the assault count. A verdict in favor of plaintiff for $5,000 was returned. Harrison then filed his motion for judgment n. o. v. or, in the alternative, a new trial, which was denied.
In brief Harrison argues that Mitchell failed to prove an assault, that he failed to prove any damages, that he failed to prove he could have retreated and thereby avoided the encounter, and that the trial court erred in denying his motion for mistrial and its refusal to keep out of the trial extraneous matters that were prejudicial to his case.
In Western Union Telegraph Co. v. Hill, 25 Ala.App. 540, 150 So. 709, cert. denied, 227 Ala. 469, 150 So. 711 (1933), the Court of Appeals of Alabama defined an assault as:
(A)n intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented.
After proof of an assault has been made, the jury may award the plaintiff nominal or compensatory damages "for the insult and the indignity, and for the hurt to the feelings, and for mental suffering and fright caused by (the) assault." Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328 (1915). Moreover:
Physical pain, mental suffering, or mental anguish, or all three, may be inferred by the jury to exist to some extent from proof of fright caused by a sudden, unprovocated, unjustifiable, assault with a pistol, accompanied with insulting language.
John R. Thompson & Co. v. Vildibill, 211 Ala. 199, 100 So. 139 (1924). Punitive damages may be awarded for an assault, however, only upon proof that it was committed wrongfully and was accompanied by "insult or other circumstances of aggravation." Id.
The record contains sufficient evidence upon which the jury could have concluded that Harrison intentionally and unlawfully threatened to touch Mitchell in an angry manner under such circumstances as to lead Mitchell to believe that Harrison not only possessed an immediate ability to carry out his threat but that he would soon do so.
When Harrison pointed the loaded shotgun at Mitchell and said, "You sorry son-of-a-bitch, I'll kill you right now," Mitchell said he got excited and really did not remember too much about what Harrison said after the above statement. Mitchell also said, "(A)ll I could see then was the gun." He said, "I had gotten pretty nervous."
Based on this evidence we believe the jury could have concluded that Mitchell was experiencing mental suffering, mental anguish, and fright as a result of Harrison's acts and threats and thus was authorized to award compensatory damages.
Although the jury did not indicate that it was awarding plaintiff punitive damages, we believe such an award would be proper in the instant case because the assault was accompanied by insulting language. See John R. Thompson & Co. v. Vildibill, sup...
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