Kuykendall v. Edmondson

• Decision Date: 12 October 1922
• Docket Number: 8 Div. 424.
• Citation: 208 Ala. 553,94 So. 546
• Parties: KUYKENDALL v. EDMONDSON.
• Court: Alabama Supreme Court

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.

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, 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 may be given in evidence under the plea of the general issue (2 Greenl. on Ev. [15th Ed.] § 625; Suell v. Derricott, 161 Ala. 259, 49 So. 895, 23 L. R. A. [N. S.] 996, 18 Ann. Cas. 636; Bean v. Stephens [Ala. Sup.] 94 So. 173).

This is not in conflict with the rule applied in Karter v. Fields, 130 Ala. 430, 30 So. 504 (action of trespass to personalty); Kinston Supply Co. v. Kelly, 200 Ala. 151, 75 So. 899 (for destruction of landlord's lien); Williams v. Noland, 205 Ala. 63, 65, 87 So. 818 (for redemption).

In special pleas 2 to 8, inclusive, are averred facts attempting to show (1) freedom from fault; (2) imminent peril to defendant's life and limb; and (3) necessity, which embraces the rule of retreat. The facts averred and on which are sought to be rested the elements of self-defense-freedom from fault and retreat (Madry v. State, 201 Ala. 512, 78 So. 866)-were properly alleged in some, if not in all, of said pleas. This is not the fact as to the sufficiency of averment, in the matter of facts showing imminent peril or the reasonable appearance thereof, of defendant at the time of the homicide. Glass v. State, 201 Ala. 441, 78 So. 819. As elements of self-defense, not only must a defendant (a) have entertained an honest and bona fide belief of the existence of the necessity, actual or apparent, to act as and when he did; (b) but the circumstances surrounding the actor at the moment before and that of the doing of the act resulting in the homicide must have been such as to impress a reasonable man, so circumstanced, with the belief of imminent peril to his life or limb. Hill v. State, 194 Ala. 11, 28, 69 So. 941, 2 A. L. R. 509; Matthews v. State, 192 Ala. 1, 4, 68 So. 334; Poe v. State, 155 Ala. 31, 46 So. 521; Jones v. State, 76 Ala. 8, 17; Storey v. State, 71 Ala. 329.

The place or venue of the homicide, the location of the houses of the defendant and of the deceased, the place where the state's witness, the son of deceased, first saw the father in the buggy, etc., just after he was shot, were relevant facts, shedding light upon the questions of venue in that county with two divisions of the circuit court, the necessity of the deceased to pass the home of the defendant in returning to his home by the public road from Albertville, and in so doing tending to show proximity of the parties to or in the public highway, or to the respective homes of the parties. No error was committed in rulings on evidence in relation to such questions of fact.

Defendant and the deceased had had previous difficulties. No error was committed in refusing to allow defendant's questions calling for the details thereof or declarations of the parties. Under an appropriate special plea of self-defense (not under the general issue) evidence tending to show declarations on the part of deceased that were susceptible of the inference by jury of hostile feeling and purpose of the deceased of attacking the defendant would have been competent. Kuykendall v. Edmondson, 200 Ala. 652, 77 So. 24. In the former trial there was such special plea. No such plea is now disclosed by the record. There was no error in exclusion of such evidence, sought to be adduced by defendant under the general issue by Smith and other witnesses; such evidence not being of facts and declarations a part of the res gestæ of the homicide. Smith v. State, 197 Ala. 193, 72 So. 316; Jackson v. State, 177 Ala. 12, 59 So. 171.

There was evidence by the witness Holsenbrook, of a declaration against interest by defendant that was susceptible of the inference, when...