Rutledge v. Rowland

• Decision Date: 15 April 1909
• Citation: 49 So. 461,161 Ala. 114
• Parties: RUTLEDGE ET AL. v. ROWLAND.
• Court: Alabama Supreme Court

49 So. 461

161 Ala. 114

RUTLEDGE ET AL. v. ROWLAND.

Supreme Court of Alabama

April 15, 1909

Rehearing Denied May 11, 1909.

Appeal from Circuit Court, Calhoun County; A. H. Alston, Judge.

Action by John Rowland against George Rutledge and others for assault and battery. From a judgment for plaintiff defendants appeal. Reversed.

The facts and the exceptions to evidence are sufficiently stated in the opinion of the court. The following charges were refused to the defendant: "(A) The court charges the jury that if they are reasonably satisfied from all the evidence in the case that the plaintiff did on the 6th day of July, 1907, in the town of Jacksonville, Ala., commit the offense of carrying a pistol about his person, concealed in violation of an ordinance of said town, then the defendants the Messrs. Rutledge were authorized to arrest him on account of such violation, and no warrant was necessary to make such an arrest valid. (B) If the plaintiff was ordered to be arrested by Dr. Arbery, or was arrested by the defendants Rutledge, for carrying a concealed pistol about his person in violation of an ordinance of the town of Jacksonville, Ala and that he violated such ordinance in their presence, then such arrest was valid. (C) The court charges the jury that if they find that Rowland at the time of his arrest was drinking and was turbulent, dangerous, and bloodthirsty, then he was not entitled to bail then and there as a matter of right. (D) The court charges the jury that if, at the time of Rowland's arrest, they find he was drinking and beside himself with rage, and contemplated doing violence to some one, then he was not entitled to bail then and there before he had a chance to cool."

Willett & Willett and Joseph J. Arnold, for appellants.

Knox, Acker & Blackmon, for appellee.

SIMPSON J.

This action was brought by the appellee against the appellants, to recover damages for an assault and battery.

There was no error in overruling the objection to the question to the witness Dr. Douthitt: "What was there in the calaboose?" No grounds for said objection are set out, and the witness had already testified without objection that he saw nothing in the calaboose but a bucket. Moreover, the witness had testified to an indentation on the head, which he attributed to the blow which he had seen inflicted on the plaintiff, and it was proper to show whether there was anything in the calaboose which might have made the indentation. The cases cited with regard to special damages have no application to this testimony.

There was no error in sustaining plaintiff's objection to the question to Dr. Douthitt, viz.: "Did you see him in town when he had not only had a drink, but was drinking?" The witness had stated that the injury to plaintiff's eyes was caused by the fracture in his skull. He had not been asked whether drinking whisky could have caused the same trouble, nor was there any evidence that it would. Besides, the question was general--not fixing any time, whether before or after the injury, when he had seen him drinking.

The third assignment of error is that the court overruled defendants' objection "to the following question, * * * and to his answer thereto," etc. The record does not show that any objection was made to the question, but only to the answer after it had been made. There was no error in overruling the objection.

There was no error in overruling defendants' objection to the question to Dr. Crook: "What is the effect of a bone or foreign substance constantly pressing on the brain?" No statement was made as to the ground of the objection. Moreover, this was not an attempt to prove special damages, but was merely an inquiry as to the usual and ordinary results of such an injury. There was no error in overruling the defendants' motion to exclude the answer to said question. While it is true that only such damages as are the usual and ordinary result of such an injury are recoverable under this complaint, and not such as might possibly follow (4 Sutherland on Damages [3d Ed.] § 1251, pp. 3641, 3642; 13 Cyc. 31; 13 Ency. Ev. 402), yet the objection was general, and the court was not required to cast about for the specific objection, as it is not so clearly illegal but that it may have been explained if called to the attention of the witness. Wallis v. Rhea & Sons, 10 Ala. 451, 453; Donnell v. Jones, 13 Ala. 490, 507, 48 Am. Dec. 59; Grey's Executors v. Brown, 22 Ala. 262, 270, 271; Cunningham's Executors v. Cochran & Estill, 18 Ala. 479, 52 Am. Dec. 230; Goldsmith, Forcheimer & Co. v. Picard, 27 Ala. 142, 152; Phillips v. Kelly, 29 Ala. 628, 632; Steele v. Tutwiler, 57 Ala. 113, 115; Dryer v. Lewis, 57 Ala. 551, 554; Bates v. Morris, 101 Ala. 282, 286, 13 So. 138; Sanders v. Knox et al., 57 Ala. 80, 84; Williams v. Gallyon et al., 107 Ala. 439, 443, 18 So. 162; Braham v. State, 143 Ala. 29, 42, 38 So. 919.

The objection to the question to the witness Rowland (plaintiff): "How long were you confined," etc., and to the answer thereto, was not made until after it had been answered. This was too late. A party cannot speculate on what the answer to a question will be, and then object to the question and move to exclude the answer, if the answer is responsive to the question. Downey v. State, 115 Ala. 108, 111, 22 So. 479; Miller et al. v. State, 130 Ala. 1, 18, 30 So. 379; Hudson et al. v. State, 137 Ala. 60, 64, 34 So. 854; Jarvis v. State, 138 Ala. 20, 37, 34 So. 1025; L. & L. & G. Ins. Co. v. Tillis, 110 Ala. 202, 213, 17 So. 672; A. G. S. R. R. Co. v. Bailey, 112 Ala. 167, 176, 177, 20 So. 313. Moreover, the testimony as to the length of time he was held up was not introducing a special element of damages, but was merely proper for the purpose of showing the severity of the assault upon him.

There was no error in sustaining the objections to the questions to the plaintiff, as a witness, as to whether two days before the assault he had said that he was not going to be arrested by either of the marshals, or as to his having made fun of the White Gap marshals, or as to his having had a conversation with Dr. Arbery before that about his marshals. These things could furnish no excuse for making an assault upon plaintiff, nor does the matter as to how he felt as to said marshals shed any light on the assault made on him that would be favorable to defendants. There was no error in sustaining the objection to the question to the plaintiff, as a witness, asking whether he had not knocked down Town Marshal Pink Carpenter with the handcuffs. Carpenter was not a party to this suit, and the particulars of any difficulty with him were entirely irrelevant to this suit. The case of Wiley v. State, 99 Ala. 146, 13 So. 424, has no resemblance to this case. In that case the doctrine of self-defense was invoked, and there was evidence tending to show that the person who was shot made a motion toward the place where it was known the pistol was kept. In the present case there is no pretense that the plaintiff was attempting to use the handcuffs. On the contrary, they had been taken away from him before the assault was made on him. It was also entirely immaterial whether the plaintiff had on that day taken the handcuffs from his pants pocket and placed them in his coat pocket. In addition to what has been said, at the time these questions were asked, there was no evidence tending to show that the plaintiff had made any motion towards bringing about the difficulty, or even towards resisting the assault, and no statement was made by the attorney to show the relevancy of the evidence.

There was no error in sustaining the objection to the question to plaintiff as a witness as to whether he had a difficulty with Dr. Arbery on the 30th of July (nearly a month after the time when plaintiff claims to have been assaulted). His physical condition at the time should be proved in some other way than by introducing evidence of the particulars of a difficulty had nearly a month after the time when plaintiff claims to have been assaulted.

There was no error in sustaining the objection to defendants' question to the plaintiff as a witness as to his statement to Bill Sargent on the morning of the 6th that they had had some fun on the 4th of July, had had more on the 5th, and would have the real thing to-day. There was no statement to the court showing the relevancy of such matter; nor was there any evidence at this stage of the proceedings tending to show that the plaintiff had been the aggressor in bringing on the difficulty.

There was no error in sustaining the objection to the question to the defendant Arbery, as a witness: "How did you happen to be in there"--referring to Maxwell's saloon. This was several weeks after the difficulty, and it was totally irrelevant to any issue in this case why Dr. Arbery went into the saloon. It was equally irrelevant whether the plaintiff was drinking at that time.

The conversation between the witness Francis and plaintiff was equally irrelevant. No matter for what purpose the handcuffs had been carried by the plaintiff, it offered no excuse for making an assault upon him after they had been taken from him....