Sanitary Market v. Hall

• Citation: 223 Ala. 525,137 So. 435
• Decision Date: 05 November 1931
• Docket Number: 6 Div. 938.
• Parties: SANITARY MARKET v. HALL.
• Court: Alabama Supreme Court

137 So. 435

223 Ala. 525

SANITARY MARKET v. HALL.

6 Div. 938.

Supreme Court of Alabama

November 5, 1931

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages for assault and battery by Mary E. Hall against James A. Norris, doing business as the Sanitary Market. From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals.

Affirmed.

Harris & Cook and Prosch & Prosch, all of Birmingham, for appellant.

G. P Benton, of Fairfield, for appellee.

THOMAS J.

The trial was had on amended count B for assault and battery, and defendant's plea of the general issue in short by consent. The issues were narrowed by consent and instruction to the jury to the fact as to whether or not there was committed on the person of plaintiff an assault and battery by defendant's agent or servant.

The elements of an assault or assault and battery, and the legal effect of mere words under the pleading, were properly defined to the jury. Republic Iron & Steel Co. v Self, 192 Ala. 403, 68 So. 328, L. R. A. 1915F, 516. The judge thus instructed the jury:

"Now, if a person in rudeness or in anger as much as lays a finger upon the person, without that other person's consent, that's an assault and battery.

"I will repeat it to you, that if a person in rudeness and in anger, and without the consent of another person, as much as lays his finger upon another person, without the consent, and in rudeness and in anger, upon the person of another, that constitutes an assault and battery, so that was there or was there not an assault and battery committed upon this lady?

"What is the truth? You and you alone are the sole judges of the questions of fact; that is not my province. *** Is it true that the servant or agent of the defendant here, while acting in the line and scope of his agency or employment, did he snatch the bundle out of the lady's arm, or not? Did he lay his hands upon the lady's arm in rudeness and in anger and against her will, or not? Is that true or is it false?"

The count on which trial was had was not challenged by demurrer for not averring the date or time of the alleged injury. Sloss-Sheffield S. & I. Co. v. Sampson, 158 Ala. 590, 48 So. 493; 49 C.J. 144, § 154.

We are not of opinion that the count was defective for duplicity. The charge and claim of damages were for the wrongful assault and battery, accompanied with words descriptive thereof-of the nature and aggravation. It is not within the rule of Central of Georgia R. Co. v. Carlock, 196 Ala. 659, 72 So. 261, 262, where the specific charge was "wrongfuly arrested and imprisoned plaintiff for a long time"; nor within that of Southern Railway Co. v. Bunnell, 138 Ala. 247, 36 So. 380, where the charge was the failure of duty of carriage of a passenger and injuries sustained in being wrongfully ejected from the train. We have no duplicity where the claim is for damages resulting from assault and battery merely.

Demurrer to count B, on grounds assigned, was properly overruled.

There was no error in not entering a mistrial for the asking of the following question: "I will ask you to state whether or not the cashier at that time told you that they had discharged that man because he was so mean to the ladies that came in the store?"

The bill of exceptions recites as to this:

"Defendant's Counsel: Then and there and in open Court stated to the Court that he will ask the Court to enter up a mistrial on the statement of the Solicitor for the plaintiff; that he is trying to prejudice the jury's mind, and that it is not fair to this defendant; it is not legal testimony, what statement the cashier may have made, and object to the very same question that has already been sustained and move the Court to enter up a mistrial.

"The Court: I won't make a mistrial gentlemen, but it is not competent; you won't consider it.

"Plaintiff's Counsel: We except.

"The Court: I will say this to you. You won't pay any attention to that statement, because it is incompetent and it is improper, and you won't be prejudiced thereby; if I thought you were, I would make a mistrial of the case. You just forget that.

"The Defendant: Then and there and in open Court duly and legally excepted to the Court's refusal to enter up a mistrial."

The matter sought was not answered, and, if so, was not of the character of erroneous matter that was introduced by way of evidence or argument, held inflammatory or improper and ineradicably prejudicial. Davis v. Quattlebaum, 210 Ala. 242, 97 So. 701; Birmingham Ry., L. & P. Co. v Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 191...