Pierce v. Floyd

• Decision Date: 03 April 1956
• Docket Number: 7 Div. 331
• Citation: 38 Ala.App. 439,86 So.2d 658
• Parties: B. W. PIERCE, Sr. v. Conway FLOYD.
• Court: Alabama Court of Appeals

Page 658

86 So.2d 658

38 Ala.App. 439

B. W. PIERCE, Sr. v. Conway FLOYD.

7 Div. 331.

Court of Appeals of Alabama.

April 3, 1956.

Ross Blackmon, Anniston, for appellant.

Chas. Douglass, Anniston, for appellee.

The following charge was refused to defendant:

'3. I charge you, Gentlemen of the Jury, that, if you are reasonably satisfied from the evidence in the case that Mr. Pierce requested Mr. Conway Floyd to depart from or leave his premises, and that Conway Floyd (plaintiff) then attempted to assault Mr. Pierce by striking Pierce, then Pierce would have had the right, under the law of Alabama, to have defended himself against such assault, if you are reasonably satisfied that Conway Floyd assaulted with force necessitating that Pierce protect himself from such assault, or in manner that rendered it necessary for Pierce to so protect himself.'

PRICE, Judge.

Plaintiff sued to recover actual and punitive damages for an assault and battery alleged to have been committed on his person by the defendant.

Defendant pleaded the general issue and special pleas setting up the defense both of his person and his premises, averring that he used no more force than was necessary to protect his person from an unprovoked assault and to expel plaintiff from defendant's premises.

There was verdict and judgment for plaintiff for $750 and defendant appeals.

The law is that, 'One who is rightfully in the exclusive occupancy of realty, in order to protect his possession, has an undoubted right, to eject trespassers who intrude thereon; but this right is not an unqualified right. In ejecting such trespasser, he must use no more force than is reasonably necessary. (3 Cyc. 1071(3, B, II); Highland Ave. & Belt R. Co. v. Robinson, 125 Ala. 489, 28 So. 28); and, if a breach of the peace ensues, resulting in an assault and battery, and the defense is invoked that the defendant committed the assault in ejecting a trespasser from his premises, he assumes the burden of showing that he used no more force than was reasonably necessary, and that he did not unnecessarily hurt or wound the wrongdoer, and the defense is not available if he who invokes it was at fault in bringing on the affray.' Hart v. Jones, 14 Ala.App. 327, 70 So. 206, 207.

The first three assignments of error were not predicated on a ruling of the court and cannot be considered. It is 'only a ruling of the court which is subject to an assignment of error.' Central of Georgia Railway Co. v. McDaniel, 262 Ala. 227, 78 So.2d 290.

The ground of the motion for a new trial that the verdict is contrary to the law likewise cannot be considered. The claimed objection was not specifically pointed out, and a general assignment will be disregarded. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Suits v. Glover, 260 Ala. 449, 71 So.2d 49, 43 A.L.R.2d 465.

Assignment of error No. 22 asserts error in the court's action in overruling the motion for a new trial on the ground that the verdict is not sustained by the great preponderance of the evidence.

The difficulty occurred on September 22, 1951, between the old abandoned and the presently traveled Gadsden-Anniston Highway in Calhoun County. There was evidence that a gate across the old highway was erected six or eight years ago by defendant, which was posted with a no trespassing sign.

Plaintiff testified he had been using the old road as a walkway for many years, because of heavy traffic in the new highway, and that no one had told him not to use it.

On the day of the difficulty defendant, riding in his automobile, came up behind plaintiff as he was walking south. Defendant jumped from his car, cursed plaintiff and asked: 'What have I told you about being on my property?' Thereupon he struck plaintiff twice about the head and face, causing him to fall to the ground, and while he was on the ground defendant kicked him in the chest and ribs, stamped on his head and threatened to kill him. Since the assault and as a result of it he has suffered from shortness of breath, pains in his side and head in and about a diseased eye; that he has difficulty in sleeping. At the time of the assault plaintiff was 58 years of age, weighed 115 pounds. The sight in his right eye was gone at the time. He had been suffering from stomach trouble and low blood pressure for about seven years. He saw Dr. Isbell and was advised to have his right eye removed and he now has a glass eye.

Dr. Faucett testified he was called to see plaintiff the night following the difficulty. He was very nervous and had some fresh injuries below his left eye and on his lips, which were swollen and bleeding. He was complaining of pains in his chest and side and was given medicine to relieve the pain. The plaintiff was taped and referred to an X-ray specialist to determine whether he had sustained a fracture. Plaintiff came to his office two or three times for treatment. The doctor made a charge of $10 for the home visit and charged $6 for each of the two office calls.

Dr. Ford, Supervisor of the X-ray departments of the Gadsden hospitals, exhibited to the jury X-ray pictures of plaintiff and stated he saw no fracture of the ribs in the pictures.

Dr. Isbell, an eye, ear and nose specialist, testified he first saw Mr. Floyd on April 23, 1948. At that time he had lost the vision in his right eye about a year before and could not even see light with that eye. The vision in his left eye was 20-60 with the glasses he wore. Examination revealed a deep cut of the right optical and a disease which was interpreted to be glaucomatous. The tension in the right eye was found to be 35 and in the left eye it was 12. 20 is considered the upper limits of normal. He was given treatment and was not seen again until April 30, 1949. He was back two days later and was not seen again until July 27, 1951, and again on July 30, 1951. The next visit was April 21, 1952. He was given treatment and came in again on June 27, 1952. The record showed the condition of his right as, 'Blind, painful, right eye, advise removing of the eye.' All the examinations and treatment referred to predated the alleged assault except the treatments and visits occurring in 1952, but there was no immediate visitation by plaintiff after September 22, 1951, the first visit subsequent to the difficulty being in April, 1952, and the sight of the right eye was totally gone on his first visit.

Defendant's evidence was to the effect that he was the owner of the property on either side of the highway; when the new highway was constructed, about 1933, the old highway was abandoned and defendant has been in possession of since that time, and his right to his possession has never been questioned.

Defendant had notified plaintiff on three prior occasions to keep off of his land. On the occasion of the difficulty he observed the plaintiff on the old road and he went to the point where plaintiff was and 'asked him why he was so persistent in continuing to trespass on my land and that I had asked him so many times to stay out and he was at the very point that we had found some whiskey and beer.' Plaintiff cursed him and said he had the right to come through there; ran up and kicked defendant on the leg and began striking him in the face, knocking his glasses off, and struck him at least 25 times on the face and body; defendant's right hand was crippled from an automobile accident several years before; he hit plaintiff first with his left hand and then with his right, but he did so only after plaintiff had first struck him and he used no more force than was reasonably necessary in order to defend himself. Defendant denied that he kicked or stamped plaintiff or that he threatened to kill him. Defendant stated he was 65 years of age and weighed around 180 pounds.

Mr. Vice testified he saw plaintiff about a month before the difficulty with a bandage over his eye. In reply to witness' question as to the condition of the eye, plaintiff said: 'I am going to have to have it taken out, if I don't I am going to lose my other eye.'

There was sufficient evidence which, if believed, justified the verdict, and we would not be authorized in disturbing the ruling of the trial court denying the motion for a new trial on the ground that the verdict was contrary to the great preponderance of the evidence. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Gulf, M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So.2d 449; Suits v. Glover, 260 Ala. 449, 71...