Killian v. Webber
| Decision Date | 16 October 1951 |
| Docket Number | 7 Div. 145 |
| Citation | 54 So.2d 634,36 Ala.App. 254 |
| Parties | KILLIAN v. WEBBER. |
| Court | Alabama Court of Appeals |
Hawkins & Copeland, Gadsden, for appellant.
Roy D. McCord and Rowan S. Bone, Gadsden, for appellee.
Betty Webber, a minor, brought suit by her father, M. T. Webber, as her next friend, against H. Clay Killian claiming damages for an assault and battery. There was a judgment in favor of plaintiff in the court below. Motion for a new trial was duly filed by defendant and was overruled.
Plaintiff's evidence tended to show that she was employed in the office of Killian-Knowles Real Estate Company, in Gadsden, Alabama, in which company defendant was a partner. On numerous occasions she had ridden to and from her home to work with defendant and on such rides their relationship was strictly that of employer and employee. On December 23, 1949, defendant offered to drive plaintiff home at closing time, but instead of driving her directly home he drove out the Piedmont Highway, stating that he had some business to attend to out that way. He drove past Chunn's Lake, turned around, drove back to the lake and parked the automobile several feet from the highway. He turned off the car lights, got out on the left front side, walked around the car, hesitating at the back, came around to the right rear door and got in the back seat. He then asked plaintiff to come to the back seat. When she refused, he pushed down the lock buttons on all four doors, put his hands under her arms and pulled her over the back of the front seat into the back seat. He then proceeded to take indecent liberties with her person. When plaintiff screamed he hit her mouth with the back of his hand, causing the inside of her lip to be cut. He held his hand over her mouth and nose so that it was difficult for her to breathe. He caused her head to strike the car door, causing a knot or lump on the back of her head. After a car passed on the highway, defendant told her if she would not cooperate with him and was going to act like a hysterical school girl, it wasn't going to be any fun for him, and he then drove her home.
Defendant's testimony was to the effect that he did not offer to drive plaintiff home on the afternoon in question. That a visitor to the office, a Mr. Ford, asked plaintiff to ride with him, saying he was going within a block of her home, but that she stated she would ride with defendant. That three weeks before Christmas he had a conversation concerning Christmas presents in which conversation she asked him to buy her nylon underwear. That he bought her a pair of 'panties.' She asked him not to give them to her at the office, but to wait and give them to her when he took her home that afternoon.
Defendant's version of the ride out the Piedmont Highway, parking the automobile, etc., was virtually the same as plaintiff's, except he insisted it was at her suggestion that he drove in that direction. They talked a few minutes, and he went to the trunk of the car, got the package containing the 'panties' and got into the back seat. She immediately came to the back seat of her own accord. He had composed a poem, which he read to her, and presented the pants. She thanked him for the present, after they kissed two or three times, a car passed by on the highway. Plaintiff then stated she must be home by 6:30 and he immediately drove her home. He denied that he attempted to have sexual intercourse with her, or that he slapped or pushed her. He also denied that she screamed or cried.
The evidence was in sharp conflict, and was sufficient to present a question for the determination of the jury. We cannot say the court erred in refusing to grant a new trial on the ground the verdict was contrary to the preponderance of the evidence. Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738; National Life and Accident Ins. Co. v. Collins, 244 Ala. 182, 12 So.2d 353; Ross Neely Motor Express Co. v. Robinson, 35 Ala.App. 431, 48 So.2d 252, certiorari denied 254 Ala. 293, 48 So.2d 254.
Defendant introduced on the hearing of the motion for new trial, on the ground of newly discovered evidence, the affidavit of A. J. Wilson to the effect that Betty Webber showed the said Wilson the cut on her lip on December 22, 1944, and told affiant that one Johnnie Wills had kissed her so hard the night before her lip was caused to be cut.
The granting or denying of a motion for a new trial on the ground of newly discovered evidence rests largely in the trial court's discretion, and its order will not be reversed on appeal unless it is made to appear the order violated some legal rights of appellant, or was an abuse of discretion. Foster v. Rosamond, 28 Ala.App. 99, 180 So. 334, certiorari denied 235 Ala. 663, 180 So. 338; Birmingham Electric Co. v. Linn, 33 Ala.App. 486, 34 So.2d 715; Birmingham Electric Co. v. Toner, 251 Ala. 414, 37 So.2d 584.
Wilson was employed by defendant and took the stand twice as a witness. We cannot say the court abused its discretion in denying the motion.
The defendant testified on direct examination that he was arrested the same night he parked his automobile at Chunn's Lake with plaintiff. On cross-examination he testified, without objection, that he was arrested and placed under bond on a charge of 'assault to rape.' The court correctly sustained plaintiff's objections, on redirect examination, to the questions: and
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Pierce v. Floyd
...assignments 18, 19, 26, 27, hence they are deemed to have been waived. Christ v. Spizman, 33 Ala.App. 586, 35 So.2d 568; Killian v. Webber, 36 Ala.App. 254, 54 So.2d 634. No error appearing in the record, the judgment is due to be affirmed. It is so Affirmed. BONE, Judge, recuses self. ...