Lunsford v. Walker

CourtSupreme Court of Alabama
Writing for the CourtCOLEMAN, J.
Citation8 So. 386,93 Ala. 36
PartiesLUNSFORD v. WALKER.
Decision Date24 November 1890

8 So. 386

93 Ala. 36

LUNSFORD
v.
WALKER.

Supreme Court of Alabama

November 24, 1890


Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

This was an action of trespass brought by the appellee against the appellant, and sought to recover damages for an assault and battery committed by the defendant upon the plaintiff. The only plea interposed was the general issue of not guilty. On the trial of the case, as shown by the bill of exceptions, the evidence tended to show, in fact the defendant admitted, that the assault had been committed on the plaintiff; and the evidence for the defendant tended to show that it was provoked by the plaintiff cursing defendant, and using insulting language towards him; and also that the plaintiff started towards the defendant, as if to strike, or as if attempting to draw a pistol on him for the purpose of shooting,-the effort being to establish the defense of Son assault demesne. But the evidence for the plaintiff contradicted the evidence of defendant, tending to show that he struck in self-defense. There was no evidence as to the race or color of either of the parties litigant; but the bill or exceptions stated that the plaintiff, being in court and testifying, showed that he was a negro. At the request of the plaintiff, the court gave the following charges in writing to the jury: "(1) If the jury believe the evidence they must find the issues in favor of the plaintiff, and assess such damages as they may find the plaintiff entitled to from all the evidence in the case. (2) If the jury believe the evidence, they must find the issues in favor of the plaintiff, and assess such damages as they find the plaintiff entitled to from all the evidence; and, in assessing the damages, the jury may consider the loss of time entailed upon the plaintiff by the injury, expense of buying medicines, employing nurse and doctors, and physical and mental pain suffered by the plaintiff; and it is not necessary for the plaintiff to have actually paid for the services of nurse and physician to entitle him to recover on those accounts, but it is sufficient, if it was necessary for him to engage such services, and he became liable to pay therefor. (3) The defendant has introduced evidence tending to show that at the time, and just before, he struck the plaintiff, the plaintiff wrongfully used towards defendant insulting language, and that plaintiff was menacing defendant, and advancing upon him in the attitude of drawing a pistol and using it upon him, and that defendant was provoked to strike plaintiff by such wrongful conduct of plaintiff. I charge you, gentlemen, that whilst under the evidence and the issues in this case you are bound to find for the plaintiff, yet if you find that plaintiff was guilty of such wrongful conduct, which was reasonably calculated to provoke defendant to strike the plaintiff, then you may...

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10 practice notes
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...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......
  • Prince v. Bryant, 3 Div. 962
    • United States
    • Supreme Court of Alabama
    • October 18, 1962
    ...to Count III. We have said that in trespass for an assault and battery, justification should be specially pleaded. Lunsford v. Walker, 93 Ala. 36, 8 So. But the record discloses that the case was tried by the parties as if the defense of justification had been properly pleaded. We will, the......
  • Pfluger v. Schoen, (No. 6375.)
    • United States
    • Court of Appeals of Texas
    • April 7, 1920
    ...31 N. J. Law, 44; Likes v. Van Dike, 17 Ohio, 454; Hathaway v. Rice, 19 Vt. 102; Bowman v. St. John, 43 Ill. 337; Lunsford v. Walker, 93 Ala. 36, 8 South. 386; Kerwich v. Steelman, 44 Ga. 197; Illinois Steel Co. v. Novak, 184 Ill. 501, 56 N. E. 966; Norris v. Casel, 90 Ind. 143; Wilken v. E......
  • Bertolla v. Kaiser, 1 Div. 640
    • United States
    • Supreme Court of Alabama
    • May 29, 1958
    ...under the general issue, but must be specially pleaded, namely: justification and self-defense in assault and battery, Lunsford v. Walker, 93 Ala. 36, 8 So. 386; setoff, Odum v. Rutledge & Julian Railroad Co., 94 Ala. 488, 10 So. 222; contributory negligence, Kansas City, Memphis & Birmingh......
  • Request a trial to view additional results
10 cases
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...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......
  • Prince v. Bryant, 3 Div. 962
    • United States
    • Supreme Court of Alabama
    • October 18, 1962
    ...to Count III. We have said that in trespass for an assault and battery, justification should be specially pleaded. Lunsford v. Walker, 93 Ala. 36, 8 So. But the record discloses that the case was tried by the parties as if the defense of justification had been properly pleaded. We will, the......
  • Pfluger v. Schoen, (No. 6375.)
    • United States
    • Court of Appeals of Texas
    • April 7, 1920
    ...31 N. J. Law, 44; Likes v. Van Dike, 17 Ohio, 454; Hathaway v. Rice, 19 Vt. 102; Bowman v. St. John, 43 Ill. 337; Lunsford v. Walker, 93 Ala. 36, 8 South. 386; Kerwich v. Steelman, 44 Ga. 197; Illinois Steel Co. v. Novak, 184 Ill. 501, 56 N. E. 966; Norris v. Casel, 90 Ind. 143; Wilken v. E......
  • Bertolla v. Kaiser, 1 Div. 640
    • United States
    • Supreme Court of Alabama
    • May 29, 1958
    ...under the general issue, but must be specially pleaded, namely: justification and self-defense in assault and battery, Lunsford v. Walker, 93 Ala. 36, 8 So. 386; setoff, Odum v. Rutledge & Julian Railroad Co., 94 Ala. 488, 10 So. 222; contributory negligence, Kansas City, Memphis & Birmingh......
  • Request a trial to view additional results

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