John R. Thompson & Co. v. Vildibill

• Decision Date: 24 April 1924
• Docket Number: 6 Div. 95.
• Citation: 100 So. 139,211 Ala. 199
• Court: Alabama Supreme Court
• Parties: JOHN R. THOMPSON & CO. v. VILDIBILL.

100 So. 139

211 Ala. 199

JOHN R. THOMPSON & CO. v. VILDIBILL.

6 Div. 95.

Supreme Court of Alabama

April 24, 1924

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by James W. Vildibill, by his next friend, Elizabeth Vildibill, against John R. Thompson & Co., for damages for an assault. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Gibson & Davis, of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

MILLER J.

This is a suit by James W. Vildibill, a minor, by his next friend against John R. Thompson & Co., for damages for an assault by defendant's cashier; defendant being the operator of the restaurant in the city of Birmingham. The defendant pleaded general issue, and self-defense-that the cashier used no more force than was reasonably necessary to repel the attack on him by the plaintiff. The jury returned a verdict in favor of the plaintiff, and this appeal is prosecuted from a judgment thereon by the court against the defendant.

The evidence for the plaintiff tended to show that plaintiff and R. B. Floyd went into the restaurant of defendant together about 11:30 on the night complained of to get something to eat. The plaintiff desired to catch a car to go home, left the table, gave his check to Floyd, who was to pay for the meals, went to the cashier of defendant and told him Floyd had his check, and would pay him. The cashier was out of humor and very cross; Floyd called to plaintiff to go on and catch his car, that he would pay his check when he came out-which conversation the cashier heard; the amount of the check was 10 cents. Floyd came up, placed the money (10 cents) and check on the counter in front of the cashier, and paid plaintiff's check. The plaintiff started out, the cashier said something to him, to which plaintiff asked "What did you say?" and the cashier then drew a pistol, and pointed it at the plaintiff, and said to him, "To get to God damn hell out of there real quick," or "God damn you, get out of here, and get out of here quick," or "God damn you, you get out of here." Floyd then stepped between the plaintiff and the cashier, and plaintiff went out of the restaurant. The plaintiff missed his car, and was "pretty badly scared" when the cashier pointed the pistol at him. The plaintiff did not use any indecent words to the cashier, nor threaten him, nor strike him, offer to strike him, or rush at him, or "anything of the sort." This cashier was in charge of this restaurant of the defendant that night.

The evidence for the defendant tended to show plaintiff came up to the cashier, and the cashier said, "Check please," and plaintiff said "a boy in the back had it," and he asked him again for the check, as he was responsible for it, and the other boy came up and paid the check, then plaintiff started to the door, and then "came back very hastily, and made an impertinent remark, the latter part of which was, 'What the hell is the matter now?"' The cashier testified: "When he [plaintiff] came back, I took a gun out of the drawer and told him to get out, I didn't present it at him; I just held it behind the counter. I did not point the gun in his direction. I did not say to him, 'God damn you, get out of here or I will kill you,' or anything like that. I did not say, 'Get the damn hell out of here quick.' I did not say, 'God damn you, get out of here, and get out of here quick,' or something like that."

R. B. Floyd, witness for the plaintiff, over objection of defendant, testified "that he asked the plaintiff to go with him to supper at this restaurant." The plaintiff testified in his own behalf, without objection of the defendant, "That night Floyd was coming up the street towards Twentieth street, and I saw him and overtook him, and he then invited me to go to Thompson's with him." The plaintiff, over objection of the defendant, was then asked, and answered the following question: "Were you then invited to go there? Answer: Yes, sir."

Whether the facts called for by these questions and the answers to them were incompetent evidence as hearsay or as calling for uncommunicated intentions we need not decide, because the defendant was not prejudiced by these rulings, and the testimony called for by these questions was in evidence, as hereinbefore shown, without objection of the defendant, and was not controverted. Moore v. Whitmore, 189 Ala. 617, h. n. 15, 66 So. 601.

The charges are neither numbered nor lettered, so we will number those assigned as error on the margin of the record for identification.

The written charge numbered 1, given by the court at the request of the plaintiff, was not erroneous. It was informing the jury what was not necessarily contained in an assault, and that it was open to them, the jury, to consider a pistol as a firearm. It may have called for an explanatory charge defining assault as applicable to this case, which the defendant did by asking written charge numbered by us 2, which was given by the court. The giving of charge numbered 2 cured the defects, if any, in given charge 1. The pointing of a pistol by one person at another may constitute an assault. Section 6893, Code 1907; McGee v. State, 4 Ala. App. 54, 58 So. 1008; B. R. L. & P. Co. v. Coleman, 181 Ala. 478, 61 So. 890; Carlton v. Henry, 129 Ala. 483, 29 So. 924.

Written charges 3 and 4, separately requested by the defendant, were separately refused by the court. The defendant by the former requested the court to instruct the jury that no award to plaintiff for damages could be made for physical pain, if they believed the evidence; and the latter charge was the same as the former, except it used the words "mental pain or mental anguish," instead of the words "physical pain." The plaintiff claimed in his complaint damages for mental and physical pain and anguish.

Under one phase of this evidence the jury could believe the cashier of defendant was "cross and out of humor," and without just provocation suddenly drew a pistol, pointed it at plaintiff, a customer in the restaurant, on his way to take a car for his home; "scared him pretty badly," and ordered him to get out of the restaurant, "God damn you," and "get out damn quick"; and the plaintiff then missed his car near midnight.

Under such circumstances, if believed by the jury, it was for them to determine whether the plaintiff was proximately caused thereby to suffer either physical pain or mental pain or mental anguish, or all three to some extent. The court in its oral charge to the jury left it for them to determine from the evidence if the plaintiff suffered mental pain, mental anguish, or physical pain from the alleged assault. The court, in writing, charged the jury, at the request of the defendant, that plaintiff could not, if they believed the evidence, recover damages for doctor's bills or medical services or loss of time or for a battery. This excluded from their consideration damages for a "traumatic injury." The court did not err in refusing these charges numbered 3 and 4.

In Vinson v. Southern Bill Tel. & Tel. Co., 188 Ala. 304, 66 So. 103, L. R. A. 1915C, 450, this court wrote:

"It has never been supposed that only permanent injuries were injuries to the person; nor that only visible injuries or injuries susceptible of being discovered or known through any of the five senses of another observing a person alleged to have suffered injury or injuries to the person."

Physical pain, mental suffering,...