Hillman v. City of Anniston
Citation | 216 Ala. 661,114 So. 55 |
Decision Date | 23 June 1927 |
Docket Number | 7 Div. 739 |
Parties | HILLMAN v. CITY OF ANNISTON. |
Court | Supreme Court of Alabama |
Rehearing Denied Oct. 27, 1927
Appeal from Circuit Court, Calhoun County; R.B. Carr, Judge.
Action for damages by Dessa Hillman, as administratrix of the estate of W.A. Hillman, deceased, against the City of Anniston. From a judgment granting defendant's motion for a new trial plaintiff appeals, and defendant cross-assigns errors. Affirmed.
See also, 214 Ala. 522, 108 So. 539.
Rutherford Lapsley and Longshore & Longshore, all of Anniston, for appellant.
James F. Matthews and Merrill, Field & Allen, all of Anniston, for appellee.
The questions presented will be treated as argued by counsel. Appellee's counsel concede that the motion for a new trial practically presents all matters urged as error by appellee in its cross-assignments of error, under section 6091 of the Code. Yates Mach. Co. v. Taylor (Ala.Sup.) 110 So. 396.
This is the second appeal, 214 Ala. 522, 108 So. 539. The action was for damages, under the Homicide Act (Code 1923, § 5696), for the death of appellant's intestate, the result of an assault by a city employee while guarding said intestate in the work of digging and loading slag for use in repairing the streets of Anniston.
The defendant pleaded the general issue and two special pleas, 3 and A. The sufficiency of plea 3 was condemned on the former appeal. Plea A filed on the last trial is to like effect--that said intestate was a prisoner serving a sentence for fine and costs imposed under the city's ordinance, was put to work as a convict at hard labor for the city, was guarded by McCardle, the person alleged to have struck said intestate, who was convict guard of the city, "charged with the duty of guarding said intestate." And plaintiff's demurrer was sustained to plea A under the influence of the former decision and announcements of error in overruling demurrer to plea 3. When plea A is referred to the complaint, there was no error in sustaining demurrer to that plea, is the view of Justices SAYRE, BOULDIN, and BROWN, joining with the writer. We have no desire to depart from the previous decision in this case, believing it to be well founded, and on this question Mr. Chief Justice ANDERSON, SOMERVILLE, and GARDNER, JJ., adhere to their view expressed on the former appeal.
The issues of fact were on conflicting evidence of a wrongful assault proximately causing death and that tending to show that the death of said intestate was the result of alcoholic poisoning. The verdict was for plaintiff. The grounds of the city's motion for a new trial, which was granted, and from which the appeal is taken, among others, were the following:
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Green v. City of Birmingham
... ... City of Birmingham, 239 Ala ... 172, 194 So. 525 and Code of 1940, Title 37, § 502 and ... authorities ... In ... Hillman v. City of Anniston, 214 Ala. 522, 108 So ... 539, 46 A.L.R. 89, the suit was for street improvements, and ... in Robbins v. City of Sheffield, ... ...
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Ballard v. City of Tampa
...failed to shake the majority holding, though there was one change in the personnel of the court during that time. See Hillman v. Anniston, 216 Ala. 661, 114 So. 55, City of Anniston v. Hillman, 220 Ala. 505, 126 So. 169. Even in the early days there was a disposition to limit the common-law......
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City of Birmingham v. Whitworth
... ... liable in damages, under the Homicide Act, section 5696 of ... the Code. This subject received a careful consideration in ... Hillman v. City of Anniston, 214 Ala. 522, 523, 108 ... So. 539, 46 A.L.R. 89, and Id., 216 Ala. 661, 114 So. 55. The ... conclusion there announced was ... ...