Irby v. Wilde
| Decision Date | 16 April 1908 |
| Citation | 46 So. 454,155 Ala. 388 |
| Parties | IRBY v. WILDE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Barbour County; A. A. Evans, Judge.
Action by George H. Wilde against L. E. Irby for damages for assault and battery. From a judgment for plaintiff, defendant appeals. Affirmed.
See 43 So. 574.
The testimony objected to, and made the basis of the first assignment of error, was that of E. L. Davis, who was permitted to testify as to statements made by the defendant as to what he did to the plaintiff on the day of the difficulty.
Merrill & Sons and Peach & Thomas, for appellant.
G. L Comer, for appellee.
Two exceptions were reserved upon the trial to the rulings of the court upon the admission and exclusion of evidence, and constitute the only matters of error insisted on. The first of these exceptions is based upon the action of the court in admitting a certain declaration of the defendant to a third person with respect to his conduct on the occasion of the difficulty out of which arose the cause of action sued upon. This statement was clearly admissible as a declaration by a party against his interest, and, furthermore, as indicative of his animus towards the plaintiff on the occasion of the difficulty. There was no error in admitting it.
The remaining exception is predicated upon the refusal of the court to permit defendant to introduce in evidence the judgment of conviction of him in a criminal prosecution for the assault and battery growing out of the same difficulty which is the foundation for the recovery in this case. It is conceded that the judgment was not admissible for the purpose of defeating a recovery; but it is insisted that it should have been admitted in mitigation of the exemplary damages which the jury were authorized to award. This indentical question arose and was decided in the case of Phillips v Kelly, 29 Ala. 628. In that case the record of the defendant's conviction was offered in evidence precisely in the same way as was done in this case. In that case the record of conviction was offered generally, and after objection to it was sustained it was then offered, as here for the purpose of showing, in mitigation of damages, the fine imposed for the criminal offense, to which offer an objection was again sustained. This court held that "the defendant has no right to prove that he had been indicted convicted, and fined for the same assault and...
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Alabama Power Co. v. Goodwin
...and fined in a criminal prosecution for the same offense. In 1 Suth. on Damages (4th Ed.) 467, the rule is stated in accord with Irby v. Wilde, supra. So far as the principle is concerned, it can make no difference whether the previous punishment offered in mitigation was by way of a fine i......
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Ritter v. Griswold
...has passed on the admissibility of testimony on that subject in a case of this kind, and held that it is not competent. Irby v. Wilde, 155 Ala. 388, 46 So. 454; Phillips v. Kelly, 29 Ala. It is not necessary to discuss other assignments of error, as they rest upon matters that can be avoide......
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