Lunsford v. Walker

• Decision Date: 24 November 1890
• Citation: 8 So. 386,93 Ala. 36
• Parties: LUNSFORD v. WALKER.
• Court: Alabama Supreme Court

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 consider such conduct in mitigation of plaintiff's damages. It cannot be considered for the purpose of defeating a recovery by the plaintiff altogether but the law says that, while damages against a defendant may be enhanced by such wrongful conduct on his part, so also, if the defendant is provoked to commit the assault by such wrongful conduct on the part of the plaintiff, he may cut into and diminish the plaintiff's damages by reason of such wrongful conduct on plaintiff's part. Remember, in considering such wrongful conduct on plaintiff's part, the only issue is mitigation of damages." The bill of exceptions then recites: "The court, in concluding its general charge, said to the jury: 'Of course, gentlemen, you will try this case as you would any other case. You have nothing to do with the color of the parties to the suit. The fact that one of the parties is a colored man should have no influence whatever upon you in the discharge of your duties. This is a court of justice. It is the place where all men may come for the redress of wrongs, and whatever may be the plaintiff's race or social Status, whenever he comes into this court, asking redress, he is entitled to the same consideration as all other men. In the administration of justice in the courts, all men stand upon equality. What the court wants to do is administer...