Nichols v. Republic Iron & Steel Co.

• Citation: 89 F.2d 927
• Decision Date: 18 May 1937
• Docket Number: No. 7849.,7849.
• Parties: NICHOLS v. REPUBLIC IRON & STEEL CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

89 F.2d 927 (1937)

NICHOLS v. REPUBLIC IRON & STEEL CO. et al.^*

No. 7849.

Circuit Court of Appeals, Fifth Circuit.

May 18, 1937.

William Augustus Denson, of Birmingham, Ala., for appellant.

Augustus Benners and James R. Forman, both of Birmingham, Ala., for appellees.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

FOSTER, Circuit Judge.

Appellant, Ralph Nichols, brought this suit in a state court against Republic Iron & Steel Company; Republic Steel Corporation; J. D. Hankins; and E. V. Cook, to recover damages for personal injuries, alleging the defendants wrongfully shot him with a firearm, severely and seriously injuring him. Thereafter the suit was dismissed against Hankins and Cook, whereupon the other defendants removed it to the federal court. Later, plaintiff also dismissed the suit as to Republic Iron & Steel Company. The case was tried to a jury and resulted in a verdict for defendant.

There are eighty-eight assignments of error. There was no motion by either side for a directed verdict, but we may consider evidence brought up in the bill of exceptions to ascertain whether the errors complained of are substantial.

It appears that defendant had rented some 50 acres of land in the vicinity of Birmingham to Joel D. Hankins, by a written lease. The lease contained this clause: "The lessee shall prevent trespassing upon the land of lessor in the vicinity of said land and in case of continued trespassing shall immediately notify lessor of the fact."

At about 10 o'clock at night plaintiff, with his brother and another man, were out gigging frogs and entered upon the land leased to Hankins, crossing over a fence to do so. They were ordered off by Hankins and left, going through his pasture, in which he had a calf. While they were in the pasture, Hankins fired on them with a shotgun and birdshot struck plaintiff in a number of places.

In the general charge the court instructed the jury, in substance, that in order to recover, the burden was on plaintiff to show that Hankins was acting as the agent of defendant within the scope of his authority; that the clause in the lease above quoted referred to land of defendant other than the land rented to Hankins; that Hankins was not an employee of defendant and that if he committed the assault in keeping the trespassers off the premises rented to him, of which he was in possession, that act would not bind his landlord; that on the other hand, if Hankins was preventing trespassing, not on his own leased land but on the adjoining lands belonging to defendant, and in endeavoring to prevent such trespass shot plaintiff, his act would be that of the defendant and binding upon the defendant as well as himself. The court left it to the jury to determine whose land plaintiff was on when shot. Seven of the assignments of error run to portions of the general charge, but the bill of exceptions fails to show that any exception was taken to any part of the charge. The purpose of excepting to the charge of the court is to afford an opportunity to the court to correct it, if erroneous. It is well settled that if exception is not taken in open court before the jury retires, an assignment of error in that particular will not lie. Taylor v. U. S. (C.C.A.) 71 F.(2d) 76, 77. Aside from that, we find no error in the charge as given.

Two assignments run to the giving of special charges requested by defendant. There is no practical difference in the charges. In substance, they were that if the jury was reasonably satisfied from the evidence that plaintiff was shot by the negroes, Hankins and Cook, or either of them, solely on account of trouble about a...