Lester v. Gay

• Decision Date: 24 May 1928
• Docket Number: 7 Div. 778
• Citation: 117 So. 211,217 Ala. 585
• Parties: LESTER v. GAY.
• Court: Alabama Supreme Court

117 So. 211

217 Ala. 585

LESTER v. GAY.

7 Div. 778

Supreme Court of Alabama

May 24, 1928

Appeal from Circuit Court, Clay County; E.S. Lyman, Judge.

Action for damages for assault and battery by Gladie Judson Lester against S.J. Gay. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Walter S. Smith, of Lineville, for appellant.

Pruet &amp Glass and J.J. Cockrell, all of Ashland, for appellee.

SAYRE J.

The bill of exceptions was presented to the trial judge more than 90 days after the verdict and judgment, but within 90 days of the judgment overruling the motion for a new trial. Appellee objects to the consideration of assignments of error based upon rulings at the trial, but not set out as grounds of error in the motion for a new trial, judgment upon which was delayed for more than a year after the trial. The objection has a grateful sound when heard in connection with the fact that 485 rulings of the trial court have been assigned for error, but must be overruled nevertheless because the statute, section 6433 of the Code, now provides that:

"Presentation of the bill of exceptions within ninety days after the granting or refusing of a motion for a new trial shall be sufficient to preserve for review the rulings of the trial court on the trial of the original cause, as well as the ruling of the court on the motion for a new trial."

The language of the statute has been changed in the respect under consideration since the decision in Massey v Pentecost, 206 Ala. 411, 90 So. 866, cited by appellee.

The action was for an alleged assault and battery committed by defendant (appellee), a physician, on the person of plaintiff, a woman, his patient. Without going into details it will suffice to say that plaintiff's case was that defendant in the course of a pretended treatment, lasciviously manipulated her person and finally proposed sexual intercourse with her. Walker v. State, 132 Ala. 11, 31 So. 557. Defendant, admitting that in response to plaintiff's statement of her case and her request for treatment he had made an intimate examination, asserted that he had proceeded in strict agreement with professional ethics and emphatically denied any wrongdoing. The jury found a verdict in agreement with his version of the facts.

Many of the assignments of error show exceptions reserved by plaintiff against rulings which allowed testimony going to show defendant's general good character, his high reputation as a physician, and his character for truth and veracity. Appellee appears to recognize the rule, observed by the courts in this state and generally elsewhere, to the effect that in civil actions testimony as to the good character of defendant is inadmissible unless and until that character has been drawn into question by evidence offered on behalf of plaintiff, and the mere contradiction of the defendant as a witness does not authorize such evidence. Drummond v. Drummond, 212 Ala. 242, 102 So. 112; Hancock v. Hullett, 203 Ala. 272, 82 So. 522. Other adjudications to the same effect may be found cited in these two cases. The rule is settled in this state. As to the last clause of the above-stated proposition of law, Owens v. White, 28 Ala. 413; Baucum v. George, 65 Ala. 259; Alexander v. Alexander, 214 Ala. 291, 107 So. 835. There are civil cases in which the character of the plaintiff, i.e., general reputation achieved by a course of life and conduct, is admissible in evidence, "such as actions for slander, criminal conversation, and breach of marriage contract." Owens v. White, supra. The correct rule, we think, is stated in Jones on Evidence, § 149, where it is laid down that:

"Although in civil actions evidence of character is not admissible to sustain the cause of action or defeat a recovery, there is a class of actions in which, from the nature of the issue, evidence of character is relevant as to the measure of damages. Perhaps this is most frequently illustrated in actions for slander or libel."

Under the rule thus laid down by the authorities the general reputation of defendant was not admissible as bearing on the issue of guilt vel non, and, of course, should not have been admitted with the purpose of mitigating the damages, if any, suffered by plaintiff.

Defendant appellee, seeks to avoid the consequences of the general rule of evidence obtaining in such cases on two considerations: (1) That the charge against him involved a charge of malpractice. That the complaint as stated in the third count, and as developed by the evidence under all counts, involved a charge of willful malpractice is evident, but that, under the law, did not permit defendant to excuse...