Morris v. McClellan

CourtSupreme Court of Alabama
Writing for the CourtDOWDELL, J.
Citation154 Ala. 639,45 So. 641
Decision Date04 February 1908
PartiesMORRIS v. MCCLELLAN.

45 So. 641

154 Ala. 639

MORRIS
v.
MCCLELLAN.

Supreme Court of Alabama

February 4, 1908


Appeal from Circuit Court, Limestone County; D. W. Speake, Judge.

Action by W. H. McClellan against John Morris, Sr. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Tyson, C.J., dissenting in part.

W. H. McClellan sues John Morris, Sr., for assault and battery. The first count was in Code form for assault and battery. The second count averred that the defendant willfully shot the plaintiff with a pistol, a deadly weapon, thereby inflicting upon his person a highly dangerous and painful wound, from which assault and battery as aforesaid the plaintiff suffered great mental anxiety and physical, was confined to his bed, unable to work for a great length of time, incurred large liabilities for doctor's bills and medicines, and was permanently impaired in his health. The defendant filed the following pleas: (1) The general issue. (2) "Defendant, as further and other answer to the said complaint as amended, and to each count thereof, separately and severally, says that on, to wit, the 25th day of June, 1904, the plaintiff with a pistol in his hand had hold of the son of defendant striking or shooting him with said pistol, and that said son of defendant was very bloody; that the defendant himself was in a weakened condition, and some little distance from the point where plaintiff had hold of his (defendant's) son; that defendant called the plaintiff to turn his son loose, no attention was paid thereto, and defendant, from the appearance of things at that time, was apparently unable to save his son from grievous bodily harm or death, except by shooting said plaintiff; that under these circumstances the defendant did shoot plaintiff, when plaintiff immediately released his (defendant's) son; that defendant made no further or other attempt to injure said plaintiff, having thus relieved his (defendant's) son, from his apparently perilous situation. And this the said defendant is ready to verify. Wherefore, he prays judgment if the said plaintiff ought to have and maintain his aforesaid action thereof against him," etc. (3) "The defendant, for further and other answer to the complaint as amended, and to each count thereof, separately and severally, says that, at the time he shot the said plaintiff, the said plaintiff with a pistol in his hand was inflicting or preparing to inflict grievous bodily harm or death upon the son of this defendant; that the defendant, upon seeing the apparent or real danger to his said son, called upon the plaintiff to release his (defendant's) son, which plaintiff did not do, but continued to act in a manner which would lead a reasonable person to honestly entertain the reasonable belief that he (plaintiff) intended to inflict grievous bodily harm or death to defendant's said son; that at said time blood was flowing freely from wounds about the head of defendant's son, which wounds had been inflicted thereon by the said plaintiff; that, when the said plaintiff refused or did not desist from his said attack on defendant's said son, the defendant then shot said plaintiff to protect and save his son from the real or apparent danger in which he then apparently was. And this the said defendant is ready to verify. Wherefore he prays judgment if the said plaintiff ought to have and maintain his aforesaid action thereof against him," etc. (4) "For further and other answer to said complaint as amended, and to each count thereof, separately and severally, this defendant says that without fault on his part, and without fault on the part of his son, the plaintiff was inflicting and had inflicted grievous bodily hurt upon his (defendant's) son; that defendant requested the said plaintiff to desist from such action, which said plaintiff did not do; that thereupon defendant, being some distance from said plaintiff, shot in order to save his son from death or grievous bodily harm, real or apparent. And the defendant further avers that, at the time he fired the said shot which struck the said plaintiff, the said plaintiff was armed with a pistol, and using it upon defendant's son; that, when defendant shot said plaintiff, the plaintiff released defendant's said son, and defendant made no further or other attempt to injure the said plaintiff. And this the said defendant is ready to verify. Wherefore he prays judgment if the plaintiff ought to have and maintain his aforesaid action thereof against him." (5) "Defendant, for further and other special answer to said complaint as amended, and to each count thereof, separately and severally, says that plaintiff and a son of defendant were engaged in a struggle of some kind, defendant's said son being wounded at the time, and just before and at the time the defendant shot the plaintiff said plaintiff was shooting or striking the said son of defendant with a pistol; that said son of defendant was bleeding at the time, being from wounds inflicted upon him by plaintiff; that to a reasonable man the appearance would have generated an honest belief of a necessity to intervene in defense of defendant's said son, who was then apparently or in reality in danger of grievous bodily harm or death at the hands of said plaintiff. Whereupon this defendant, not being in a situation to take hold of said plaintiff, called to said plaintiff to loose the said son of defendant, which plaintiff did not do, but continued to shoot or strike him with said pistol; and in defense of his said son defendant shot said plaintiff, who at the time was using excessive force in repelling any seeming assault made upon him by defendant's said son."

The following demurrers were filed to special pleas 3, 4, and 5, separately and severally: "(1) That it does not show any justification for the assault complained of. (2) It does not aver or show any matter or facts in justification of the assault by the defendant on the plaintiff by shooting him with a pistol on the said occasion in question. (3) That it does not appear therefrom that the defendant used no more force than was necessary to free his son from the alleged peril or danger to life or great bodily harm at the hands of the plaintiff. (4) It does not appear therefrom that in striking or shooting the son of defendant the plaintiff was using more force than was necessary to free the plaintiff from the attack or assault or fighting of the alleged son of the defendant. (5) That it does not appear therefrom that the son of the defendant was not attacking, assaulting, or fighting, or attempting to attack, assault, or fight, the...

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31 practice notes
  • International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Hatas, 2 Div. 506
    • United States
    • Supreme Court of Alabama
    • August 5, 1971
    ...§ 6 of the 1901 Constitution of Alabama has been held available to a party in a civil action.--Morris v. McClellan,[287 Ala. 361] Page 22 154 Ala. 639, 45 So. 641; McElroy's The Law of Evidence in Alabama, 2d Ed., Vol. 3, § 373.01. See Ex parte Rice, 259 Ala. 570, 67 So.2d 825. On June 14, ......
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...a matter to be presented by a special plea and not by the general issue Rhodes v. McWilson, 192 Ala. 675, 69 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 bein......
  • Mount Vernon-Woodberry Mills v. Little, 5 Div. 72.
    • United States
    • Supreme Court of Alabama
    • March 12, 1931
    ...the ground upon which the charge was approved. See Murphy v. Coleman, 9 Ala. App. 625, 64 So. 185. The rule stated in Morris v. McClellan, 154 Ala. 639, 45 So. 641, 16 Ann. Cas. 305, is that the defendant, in pleading self-defense in an action of trespass predicated upon a felonious assault......
  • Hinton & Sons v. Strahan, 6 Div. 89
    • United States
    • Supreme Court of Alabama
    • June 27, 1957
    ...references but the objections were overruled. In this action, the trial court did not commit reversible error. In Morris v. McClellan, 154 Ala. 639, 45 So. 641, 645, the court, speaking through Dowdell, J., '* * * It has always been the rule in civil actions that the failure of a party to t......
  • Request a trial to view additional results
31 cases
  • International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Hatas, 2 Div. 506
    • United States
    • Supreme Court of Alabama
    • August 5, 1971
    ...§ 6 of the 1901 Constitution of Alabama has been held available to a party in a civil action.--Morris v. McClellan,[287 Ala. 361] Page 22 154 Ala. 639, 45 So. 641; McElroy's The Law of Evidence in Alabama, 2d Ed., Vol. 3, § 373.01. See Ex parte Rice, 259 Ala. 570, 67 So.2d 825. On June 14, ......
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...a matter to be presented by a special plea and not by the general issue Rhodes v. McWilson, 192 Ala. 675, 69 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 bein......
  • Mount Vernon-Woodberry Mills v. Little, 5 Div. 72.
    • United States
    • Supreme Court of Alabama
    • March 12, 1931
    ...the ground upon which the charge was approved. See Murphy v. Coleman, 9 Ala. App. 625, 64 So. 185. The rule stated in Morris v. McClellan, 154 Ala. 639, 45 So. 641, 16 Ann. Cas. 305, is that the defendant, in pleading self-defense in an action of trespass predicated upon a felonious assault......
  • Hinton & Sons v. Strahan, 6 Div. 89
    • United States
    • Supreme Court of Alabama
    • June 27, 1957
    ...references but the objections were overruled. In this action, the trial court did not commit reversible error. In Morris v. McClellan, 154 Ala. 639, 45 So. 641, 645, the court, speaking through Dowdell, J., '* * * It has always been the rule in civil actions that the failure of a party to t......
  • Request a trial to view additional results

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