Lovelace v. Miller

CourtSupreme Court of Alabama
Writing for the CourtDENSON, J.
Citation43 So. 734,150 Ala. 422
PartiesLOVELACE v. MILLER ET AL.
Decision Date20 April 1907

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...

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18 practice notes
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...154 Ala. 654, 45 So. 653 (ex delicto); Montgomery G.L. Co. v. M. & E.R. Co., 86 Ala. 372, 5 So. 735 (ex delicto); Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A. (N.S.) 670, 14 Ann.Cas. 1139 (damages for assault and battery); and Crawford v. Mills, 202 Ala. 62, 79 So. 456, was upon ......
  • Walker v. St. Louis-San Francisco Ry. Co., 6 Div. 412
    • United States
    • Supreme Court of Alabama
    • April 8, 1926
    ...Ala. 654, 45 So. 653; Witcher v. Brewer, 49 Ala. 121, 122; Northern Ala. Ry. Co. v. Mansell, 138 Ala. 548, 36 So. 459; Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A.(N.S.) 670, 14 Ann.Cas. 1139. See Wright v. McCord, 205 Ala. 122, 88 So. 150; Roman v. Dreher, 1 Ala.App. 429, 55 So.......
  • Woodhouse v. Woodhouse
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 7, 1925
    ...such liability would not be irrelevant. A similar claim to that advanced by the defendants was made and overruled in Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L. R. A. (N. S.) 670, 14 Ann. Cas. 1139. Under several assignments of error the defendants complain of the method pursued in ......
  • Arnst v. Estes
    • United States
    • Supreme Judicial Court of Maine (US)
    • September 13, 1939
    ...Kansas City, 308 Mo. 161, 271 S.W. 516; Matthews v. Delaware L. & W. R. Co., 56 N.J.L. 34, 27 A. 919, 22 L.R.A. 261; Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A, N.S, 670, 14 Ann. Cas. 1139; Goekel v. Erie R. Co., 100 N.J.L. 279, 126 A. 446; 11 Encyc. Plead. & Prac, 852; 15 Encyc......
  • Request a trial to view additional results
18 cases
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...154 Ala. 654, 45 So. 653 (ex delicto); Montgomery G.L. Co. v. M. & E.R. Co., 86 Ala. 372, 5 So. 735 (ex delicto); Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A. (N.S.) 670, 14 Ann.Cas. 1139 (damages for assault and battery); and Crawford v. Mills, 202 Ala. 62, 79 So. 456, was upon ......
  • Walker v. St. Louis-San Francisco Ry. Co., 6 Div. 412
    • United States
    • Supreme Court of Alabama
    • April 8, 1926
    ...Ala. 654, 45 So. 653; Witcher v. Brewer, 49 Ala. 121, 122; Northern Ala. Ry. Co. v. Mansell, 138 Ala. 548, 36 So. 459; Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A.(N.S.) 670, 14 Ann.Cas. 1139. See Wright v. McCord, 205 Ala. 122, 88 So. 150; Roman v. Dreher, 1 Ala.App. 429, 55 So.......
  • Woodhouse v. Woodhouse
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 7, 1925
    ...such liability would not be irrelevant. A similar claim to that advanced by the defendants was made and overruled in Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L. R. A. (N. S.) 670, 14 Ann. Cas. 1139. Under several assignments of error the defendants complain of the method pursued in ......
  • Arnst v. Estes
    • United States
    • Supreme Judicial Court of Maine (US)
    • September 13, 1939
    ...Kansas City, 308 Mo. 161, 271 S.W. 516; Matthews v. Delaware L. & W. R. Co., 56 N.J.L. 34, 27 A. 919, 22 L.R.A. 261; Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A, N.S, 670, 14 Ann. Cas. 1139; Goekel v. Erie R. Co., 100 N.J.L. 279, 126 A. 446; 11 Encyc. Plead. & Prac, 852; 15 Encyc......
  • Request a trial to view additional results

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