Kuykendall v. Edmondson, 8 Div. 424.

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation208 Ala. 553,94 So. 546
Docket Number8 Div. 424.
Decision Date12 October 1922
PartiesKUYKENDALL v. EDMONDSON.

94 So. 546

208 Ala. 553

KUYKENDALL
v.
EDMONDSON.

8 Div. 424.

Supreme Court of Alabama

October 12, 1922


Rehearing Denied Dec. 7, 1922.

Appeal from Circuit Court, Marshall County; O. A. Steele, Judge.

Action by Mary M. Edmondson, as administratrix of David M. Edmondson, deceased, against C. Kuykendall. From a judgment for plaintiff, defendant appeals. Affirmed.

For opinions on former appeals, see 200 Ala. 650, 77 So. 24; 205 Ala. 265, 87 So. 882. [94 So. 547]

John A. Lusk & Son and Street & Bradford, all of Guntersville, for appellant.

E. O. McCord & Son, of Gadsden, and Thomas E. Orr, of Albertville, for appellee.

THOMAS, J.

Former appeals are reported in 200 Ala. 650, 77 So. 24, 205 Ala. 265, 87 So. 882. There were special pleas of self-defense on former trials and before this court. The last trial was had on count 4 and the general issue.

The bill of exceptions shows that the buggy in which deceased was shot, bearing marking thereon indicating the angle whence the shots came, by permission of trial court was viewed by the jury. We cannot say that the same is described in the bill of exceptions in exact manner and to a like effect as did its inspection impress the jury; hence the refusing of special charges requested by defendant in writing will not be reviewed. Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796. See Folmar Mercantile Co. v. Town of Luverne, 203 Ala. 363, 83 So. 107; United States, etc., Co. v. Granger, 172 Ala. 546, 55 So. 244; L. & N. R. R. Co. v. Jenkins, 196 Ala. 136, 72 So. 68.

Self-defense or justification in a civil suit is a matter to be presented by a special plea and not by the general issue Rhodes v. McWilson, 192 Ala. 675, 69 So. 69; Morris v. McClellan, 154 Ala. 639, 45 So. 641, 16 Ann. Cas. 305; Mitchell v. Gambill, 140 Ala. 316, 37 So. 290; Lunsford v. Walker, 93 Ala. 36, 38, 8 So. 386-these cases being civil actions for damages caused by assaults and battery. Womack v. Bird, 51 Ala. 504, was for trespass for taking personal property. The most common defense is that plaintiff made first assault, [94 So. 548] and this must be specially pleaded. Phillips v. Kelly, 29 Ala. 628, 635; Slaughter v. Doe ex dem. Swift, 67 Ala. 494. This is an application of the rule that a plea of justification must set forth matter, which, if proved, would constitute a full defense or a bar to the prosecution of the action to judgment. Chitty, Pl. 500; Harrison v. Davis, 2 Stew. 350.

In Slaughter v. Doe ex dem. Swift, supra, where the defense offered was not a denial of the right of action, Judge Stone adverted to section 2988 of the Code of 1876 (carried into section 5331, Code 1907), declaring that the statute has defined the extent to which the plea of not guilty can be made available; and, aside from the cases indicated therein, if the pleader does not rely solely on a denial of the cause of action, the matter of defense must be specially pleaded. Norton-Crossing Co. v. Martin, 202 Ala. 569, 81 So. 71; L. & N. R. R. Co. v. Bartee, 204 Ala. 539, 86 So. 394, 12 A. L. R. 251; Rhodes v. McWilson, supra; Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36, 87 Am. St. Rep. 54; Daniel v. Hardwick, 88 Ala. 557, 7 So. 188; Finch's Executors v. Alston, 2 Stew. & P. 83, 86, 23 Am. Dec. 299; Milman v. Dolwell, 2 Campbell (Lord Ellenborough) 378, 379; Will's Gould on Pl., pp. 97a, 97b, 98a, 98b; 1 Chitty, Pl. 415, 492; 2 Greenl. on Ev. § 274; Pendleton v. Norfolk & W. R. Co., 82 W.Va. 270, 95 S.E. 941, 16 A. L. R. 761 et seq.; 2 R. C. L. § 57, p. 576.

The plea of not guilty puts in issue "all the material allegations of the complaint" in "actions for defamation, or for injuries to the person, or to real or personal property." In the instant action, under the homicide statute (Code, § 2486), the claim is for such damages as the jury may assess for the wrongful act of defendant causing the death of plaintiff's intestate; and "all the material allegations of the complaint" are those showing the wrongful act of defendant causing the death for which the suit is brought; and, the damages being punitive and not compensatory (L. & N. R. R. Co. v. Bogue, 177 Ala. 349, 58 So. 392; Gulf States Steel Co. v. Justice, 204 Ala. 577, 87 So. 211; Allen v. Alger-Sullivan Lumber Co., 204 Ala. 92, 85 So. 278; L. & N. R. R. Co. v. Cross, 205 Ala. 626, 88 So. 908; L. & N. R. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Collins & Co., 201 Ala. 489, 78 So. 395; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Hull v. Wimberly & Thomas Hdw. Co., 178 Ala. 538, 59 So. 568; T. C. I. & R. R. Co. v. Herndon, Adm'r, 100 Ala. 457, 14 So. 287), it follows that every defense admitting the defendant to have been prima facie guilty of the homicide must be specially pleaded; that any matter which goes to show that defendant did not commit the act complained of...

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13 practice notes
  • Ashworth v. Alabama Great Southern R. Co., 6 Div. 941.
    • United States
    • Supreme Court of Alabama
    • February 7, 1924
    ...said pleas. The pleading of self-defense to a civil action has been the subject of discussion by the court in Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546. Appellant's counsel urge that there was reversible error in overruling demurrers to pleas 3, 6, and 7, as answers to count 3 of th......
  • Rose v. Magro, 6 Div. 468.
    • United States
    • Supreme Court of Alabama
    • October 24, 1929
    ...elements of self-defense are required to be embraced in a plea (Drummond v. Drummond, 212 Ala. 242, 102 So. 112; Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546) by the facts averred, and from which the conclusion employed follows as a matter of law (Kuykendall v. Edmondson, supra; Vaughn......
  • Southern Ry. Co. v. Jarvis, 6 Div. 863
    • United States
    • Supreme Court of Alabama
    • October 24, 1957
    ...fact and not as an illustration. Cross v. State, supra; Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74; Kuykendall v. Edmondson, 208 Ala. 553, 94 So. The court in the Cross case, supra, stated as follows: '* * * The statement must be made as of fact; the fact stated must be unsuppo......
  • Grieger v. Vega, No. A-4577
    • United States
    • Supreme Court of Texas
    • July 14, 1954
    ...v. Pannell, 107 Tex. 433, 180 S.W. 593; Walker v. Money, 132 Tex. 132, 120 S.W.2d 428; 17 Tex.Jur. 324, § 98. In Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546, it was held that after the defendant admitted an intent to kill he had the burden of going forward with the evidence, and that ......
  • Request a trial to view additional results
13 cases
  • Ashworth v. Alabama Great Southern R. Co., 6 Div. 941.
    • United States
    • Supreme Court of Alabama
    • February 7, 1924
    ...said pleas. The pleading of self-defense to a civil action has been the subject of discussion by the court in Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546. Appellant's counsel urge that there was reversible error in overruling demurrers to pleas 3, 6, and 7, as answers to count 3 of th......
  • Rose v. Magro, 6 Div. 468.
    • United States
    • Supreme Court of Alabama
    • October 24, 1929
    ...elements of self-defense are required to be embraced in a plea (Drummond v. Drummond, 212 Ala. 242, 102 So. 112; Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546) by the facts averred, and from which the conclusion employed follows as a matter of law (Kuykendall v. Edmondson, supra; Vaughn......
  • Southern Ry. Co. v. Jarvis, 6 Div. 863
    • United States
    • Supreme Court of Alabama
    • October 24, 1957
    ...fact and not as an illustration. Cross v. State, supra; Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74; Kuykendall v. Edmondson, 208 Ala. 553, 94 So. The court in the Cross case, supra, stated as follows: '* * * The statement must be made as of fact; the fact stated must be unsuppo......
  • Grieger v. Vega, No. A-4577
    • United States
    • Supreme Court of Texas
    • July 14, 1954
    ...v. Pannell, 107 Tex. 433, 180 S.W. 593; Walker v. Money, 132 Tex. 132, 120 S.W.2d 428; 17 Tex.Jur. 324, § 98. In Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546, it was held that after the defendant admitted an intent to kill he had the burden of going forward with the evidence, and that ......
  • Request a trial to view additional results

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