Lovelace v. Miller

• Decision Date: 20 April 1907
• Citation: 43 So. 734,150 Ala. 422
• Parties: LOVELACE v. MILLER ET AL.
• Court: Alabama Supreme Court

43 So. 734

150 Ala. 422

LOVELACE v. MILLER ET AL.

Supreme Court of Alabama

April 20, 1907

Appeal from Circuit Court, Escambia County; J. C. Richardson, Judge.

Action by Dewitt Lovelace against Henry Miller and another. Judgment for defendants, and plaintiff appeals. Reversed.

The plaintiff requested the following written charges, which were refused by the court: "(1) The court charges you gentlemen of the jury, that, if you believe the evidence in this case, you must find for the plaintiff as against the defendant T. R. Miller for the actual damages plaintiff has sustained. (2) The court charges the jury that if the proof reasonably satisfies the jury that one of the defendants is guilty of the assault and battery charged, and fails to reasonably satisfy him that the other defendant is guilty then your verdict should be for the plaintiff as against the defendant so reasonably proved to be guilty, and in favor of the defendant not so reasonably proved to be guilty. (3) The court charges the jury that heat of blood on the part of the defendant T. R. Miller, not reasonably induced by word or act on the part of the plaintiff, cannot be considered in mitigation of the damages which plaintiff may have been shown to be entitled to recover."

The court gave the following written charges at the instance of the defendant: "(H) I charge you, gentlemen of the jury that, if you believe the evidence in this case, you must find either in favor of both the defendants or against them both." "(B) I charge you, gentlemen of the jury that, if you believe the evidence in this case, you cannot find in favor of one of the defendants and against the other; but, unless you are reasonably satisfied that both the defendants are guilty of the assault and battery upon plaintiff, then your verdict must be for the defendant." "(9) I charge you gentlemen of the jury, that, unless you are reasonably satisfied from the evidence in this case that Henry Miller and T. R. Miller committed an assault and battery jointly upon the plaintiff, then your verdict should be for the defendants."

A. L. Rankin and Stevens & Lyons, for appellant.

Leigh & Leigh and M. A. Rabb, for appellees.

DENSON J.

This action sounds in damages for an assault and battery alleged to have been committed by the defendants on the person of the plaintiff. The plaintiff, being a minor, prosecutes the suit in the name of a next friend. The cause was tried on the plea of the general issue; the trial resulting in a verdict and judgment for the defendants. From the judgment plaintiff took this appeal. There are several grounds in the assignment of errors, but we deem it unnecessary to discuss them seriatim, as there are two general propositions of law, a discussion of which, we think, will show the errors into which the trial court fell, and will point the way to correct rulings in respect to the questions involved on a remandment and retrial of the cause.

It was contended by the defendants below that, as the complainant alleges an assault and battery committed by both of the defendants--a joint assault and battery--the plaintiff should show liability on the part of both of the defendants, or there should be a verdict for both, albeit the evidence without conflict shows an assault and battery by one of them. This contention was upheld by the trial court, as is shown by charges refused to the plaintiff and those given for the defendants. Going back to Chitty on Pleading, we find the law stated in the following language: "* * * Where in point of fact and of law several persons might have been guilty of the same offense, the joinder of more persons than were liable, in a personal or mixed action in form ex delicto, constitutes no objection to a partial recovery, and one of them may be acquitted, and a verdict taken against the others." 1 Chitty on Pleading, p. 86. The author cites in support of this proposition the following authorities; Lansing v. Montgomery, 2 Johns. (N. Y.) 382; Cooper v. South, 4 Taunt. 802; Jackson v. Woods, 5 Johns. (N. Y.) 280, 281; Cunningham v. Dyer, 2 T. B. Mon. 51; Hayden v. Nott, 9 Conn. 367. The same rule is stated in the Encyclopedia of Pleading & Practice, in the following language: "In actions ex delicto a joint liability need not be proved, and consequently a misjoinder of defendants will not defeat a recovery against any or either proved guilty." 15 Ency. of Pl. & Pr. 583. See, also, the cases cited in note 4 to the text. And in Pounds v. Richards our own court states the rule in this language: "In actions of tort, it is competent for the jury to find one of the parties guilty, and another not guilty. It may turn out, also, that there may be no evidence conducing to show the guilt of one of the defendants, while as to the others there may be a strong case made out. * * * Indeed, it would have been regular, if the plaintiff had introduced no proof whatever of the guilt of one of the defendants, to have directed his acquittal before the jury passed on the guilt of the others." Pounds v. Richards, 21 Ala. 424; Chaffee v. United States, 18 Wall. (U. S.) 516, 21 L.Ed. 908. In the case of Milner v. Milner, a case for trespass on a bedroom, the court said, through McClellan, J.: "This action is joint and several. It was with the jury to say that both the defendants were guilty, or that neither was, or that either one was." Milner v. Milner, 101 Ala. 599, 603, 14 So. 373. Then we have a statute which provides: "When a suit is instituted against several defendants, whether sued as partners or otherwise, the plaintiff may recover against one or more, but is liable to costs to those against whom he does not obtain judgment." Code 1896, § 44. Nothing decided in the case of Carleton v. Henry, 129 Ala. 479, 29 So. 924, is in conflict with the principles decided in the cases referred to or announced in the books referred to.

In the light of the cases and texts referred to, as well as in that of the statute, it is clear that, notwithstanding the jury might have believed from the evidence that Henry Miller took no part in the assault, was not connected with it either by active...