Powell v. Bingham

• Decision Date: 27 February 1940
• Docket Number: 6 Div. 627.
• Citation: 29 Ala.App. 248,196 So. 154
• Parties: POWELL v. BINGHAM.
• Court: Alabama Court of Appeals

196 So. 154

29 Ala.App. 248

POWELL v. BINGHAM.

6 Div. 627.

Court of Appeals of Alabama

February 27, 1940

Rehearing Denied March 19, 1940.

Appeal from Circuit Court, Tuscaloosa County; Tom B. Ward, Judge.

Action for damages for assault and battery by Mollie Bingham against Maggie Powell, Lucille Powell, and another. From a judgment for plaintiff against the named defendants, the first named defendant appeals.

Affirmed.

F. F Windham, of Tuscaloosa, for appellant.

R. C. Price, of Tuscaloosa, for appellee.

BRICKEN Presiding Judge.

Plaintiff (appellee) brought suit in the circuit court, claiming $3,000 as damages against Mrs. Lucille Powell, Mrs. Maggie Powell and Horace Powell, for that, as alleged in count 1 of the complaint, said named defendants did willfully and intentionally assault and beat plaintiff on the 8th day of March 1938, in the City of Tuscaloosa, Alabama, and that as the proximate result of said assault and battery, said plaintiff suffered and sustained the injuries to person and property, described in said count of the complaint.

In count 2 of the complaint it is alleged that Mrs. Lucille Powell and Mrs. Maggie Powell, were the agents, servants, or employees of Horace Powell, and that acting under instructions of said Horace Powell, said Mrs. Lucille Powell and Mrs. Maggie Powell did willfully and intentionally assault and beat the plaintiff and that as the proximate result of said assault and battery said plaintiff suffered and sustained the injuries to person and property specifically described in said count of the complaint.

There were other counts in the complaint, but the above-mentioned counts 1 and 2, fairly set forth the various aspects of plaintiff's case, and therefore it is unnecessary to further refer to the other counts.

Defendants filed demurrers to plaintiff's complaint, which being overruled by the trial court, defendants filed their plea of the general issue, in short by consent, with leave to give in evidence any matter which might be specially pleaded.

Issue was joined upon plaintiff's complaint and defendants' plea thereto. The jury returned a verdict in favor of the plaintiff and against Mrs. Maggie Powell and Mrs. Lucille Powell, assessing plaintiff's damages at $500. The jury returned a verdict in favor of Horace Powell, the third defendant. The judgment of the trial court was accordingly pronounced and entered in favor of plaintiff and against Mrs. Lucille Powell and Mrs. Maggie Powell, for said sum of $500 damages, together with the costs of suit.

Motion filed for a new trial by said two defendants was overruled and denied by the trial court.

Mrs Maggie Powell has taken an appeal to this court from said judgment, and presents for the consideration of this court certain alleged errors, which she claims were committed by the trial court, to her injury, upon the trial of this case and wherein she also presents for review the judgment of the lower court upon the motion for a new trial.

It appears, without dispute, that plaintiff was assaulted and beaten, by at least one of the defendants, Mrs. Lucille Powell, on the date and at the place mentioned in the complaint.

The testimony of appellee and of Mrs. Lucille Powell and Mrs. Maggie Powell, the only witnesses to the res gestæ of the assault and battery, is in conflict as to whether or not Mrs. Maggie Powell, one of the defendants, took any part in the assault and battery while Horace Powell's connection therewith, it is shown, was dependent entirely upon his having given instructions to Mrs. Lucille Powell, his wife and to Mrs. Maggie Powell, his mother, to assault and beat the plaintiff. Upon the whole evidence the jury found in favor of the defendant, Horace Powell, and so he was thereby eliminated from all damages to plaintiff.

The testimony is also in conflict as to whether the plaintiff was assaulted and beaten upon her own premises or upon the premises of Mrs. Maggie Powell, one of the defendants.

The testimony of Mrs. Bingham, plaintiff, and of Mrs. Lucille Powell and Mrs. Maggie Powell, defendants, is also in conflict as to the cause of the assault and battery. Mrs. Bingham testified that she was assaulted and beaten in her own front yard by Mrs. Lucille Powell, and Mrs. Maggie Powell because she, Mrs. Bingham, had reported Horace Powell for selling intoxicating liquor, while Mrs. Lucille Powell and Mrs. Maggie Powell both testified that Mrs. Lucille Powell, while standing in Mrs. Maggie Powell's front yard, called Mrs. Bingham to her and then reprimanded Mrs. Bingham for interfering in the affairs of Mrs. Lucille Powell and Horace Powell, her husband, or of meddling in their affairs, and that this was the cause of the difficulty. In this connection, however, it must be admitted that upon cross-examination Mrs. Lucille Powell testified with reference to the commencement of the assault and battery as follows; "Before I struck the first blow we were talking about my affairs and I asked her (Mrs. Bingham) if she did not report my husband and she said 'Yes, I gave him a dose,' and I said: 'I will give you a dose.' I then cut loose on her."

According to Mrs. Bingham's testimony she was assaulted and beaten by Mrs. Lucille Powell and Mrs. Maggie Powell, with such grave and serious results and under such attendant circumstances, as justified not only the award of compensatory damages by the jury in her favor, but the assessment, also, of punitive damages against her assailants by way of punishment for the wrong committed in such sum as the jury in its discretion might have seen fit to award, not to exceed the amount sued for, in the event the jury believed her testimony.

The testimony for the plaintiff, Mrs. Bingham, tended to show without substantial dispute or controversy, that immediately following the assault and battery said Mrs. Bingham, for and on account of the physical injuries received by her as the direct result of the beating which she admittedly received, was under the care and treatment of a general medical practitioner for two months or more, and was also under the care and treatment of an eye specialist for a little over six weeks. That she was badly beaten and that she suffered much pain and that she received bodily injuries of a rather serious nature, as the proximate result of said assault and battery.

Mrs. Maggie Powell, who alone takes the appeal in this case, makes 19 assignments of error. And in the brief and argument filed insists upon assignments of error numbered 3, 4, 8, 9, 11, 12, 13, 16, 17 and 19.

The rule with reference to the assignment of errors on appeal which is of force in this court, and in our Supreme Court is that assigned errors of the trial court are waived where the appellate court's attention is directed to them in appellant's brief by mere assertion that the trial court erred, without any attempt to show wherein the trial court's actions were erroneous. Barbour Plumbing, Heating & Electric Company v. Ewing, 16 Ala.App. 280, 77 So. 430, 763; Liberty National Life Ins. Co. v. Collier, 228 Ala. 4, 154 So. 119; Id. 26 Ala.App. 75, 154 So. 116; Boswell v. Land, 217 Ala. 39, 114 So. 470.

In accordance with the above rule this court is of the opinion, and so adjudges, that assignments of error 1, 2, 5, 6, 7, 10, 14, 15 and 18 have been waived by appellant and need no further consideration by this court.

Under assignment of error numbers 3, 4 and 12 appellant complains that the trial court erred in admitting certain statements made by one, or the other, of the three persons, alleged to have directly participated in the assault and battery, made immediately preceding said difficulty or during the occurrence thereof.

The rule applicable to said objections and exceptions is that all that was done and said by the parties, at the time and place of the difficulty, and immediately preceding it, is admissible testimony as a part of the res gestæ. Some of the cases declaring and applying the rule are: Miller-Brent Lumber Co. v. Stewart, 166 Ala. 657, 51 So. 943; Tiller v. State, 10 Ala.App. 45, 64 So. 653; Brown v. State, 21 Ala.App. 214, 107 So. 29; Nickerson v. State, 22 Ala.App. 640, 119 So. 243; Pelham v. State, 23 Ala.App. 359, 125 So. 688; Dillard v. State, 27 Ala.App. 50, 165 So. 783; Hanson v. State, 27 Ala.App. 147, 168 So. 698; Kiel v. State, 28 Ala.App. 308, 184 So. 208.

It is, on account of said rule, apparent that said assignments of error 3, 4, and 12, respectively, are without merit and that the trial court did not err as therein asserted.

Appellant, under assignments of error numbered 8 and 9, respectively, insists that the trial court was in error in refusing to permit defendants to propound to their witness, Mrs. Maggie Powell, the following questions:

"1. What was the beginning of the trouble between Lucille and Mrs. Bingham? What was the beginning of it? 2. Did they fight there?"

The record in this case shows that Mrs. Maggie Powell testified on direct examination that she was one of the defendants that she was the mother of Horace Powell and the mother-in-law of Lucille Powell; that at the time of the difficulty between Mrs. Bingham and Mrs. Lucille Powell the witness lived on Greensboro Avenue, next to Mrs. Bingham; and it was at this stage of Mrs. Maggie Powell's testimony that the above question numbered 1 was propounded to her by defendant's attorney. Plaintiff objected and the trial court sustained the objection and defendants then and there duly and legally excepted. The record as to this action of the trial court shows that the witness immediately continued her testimony and testified as follows: "The way the trouble started, Lucille and I were going to the store and as we got on my front door steps there was a lady coming across...