Shelley v. Clark

• Decision Date: 22 May 1958
• Docket Number: 4 Div. 928
• Citation: Shelley v. Clark, 103 So.2d 743, 267 Ala. 621 (Ala. 1958)
• Parties: Levie H. SHELLEY v. Charlie CLARK.
• Court: Alabama Supreme Court

Page 743

103 So.2d 743

267 Ala. 621

Levie H. SHELLEY v. Charlie CLARK.

4 Div. 928.

Supreme Court of Alabama.

May 22, 1958.

Rehearing Denied June 19, 1958.

Grady G. Cleveland, Jr., Eufaula, for appellant.

Archie I. Grubb and Sam A. LeMaistre, Eufaula, for appellee.

LAWSON, Justice.

Charlie Clark brought this suit in the circuit court of Barbour County against Levie H. Shelley, claiming $15,000 as damages for assault and battery.

There was jury verdict in favor of the plaintiff for $7,500. Judgment was duly entered in accord with the verdict. Shelley's motion for new trial being denied, he has appealed to this court.

The appellant has assigned errors in the following manner. He alleges that: 'The Court erred in overruling the appellant's motion for a new trial and as grounds therefor sets down and assigns the following:' That statement is followed by fifteen 'grounds.' While this a very unusual and awkward method of assigning error, we will consider it as being sufficient to invite review of those 'grounds' which are well stated and which have been properly argued in brief of appellant. Grimes v. Jackson, 263 Ala. 22, 82 So.2d 315.

The third 'ground' reads: 'The Court erred in overruling appellant's objection to the introduction of hearsay evidence. (Transcript, Page 17)' Under the rule of our cases this assignment is perhaps too general. Spurlock v. J. T. Knight & Son, 246 Ala. 283, 20 So.2d 525; Almon v. Commission of Education, 265 Ala. 489, 92 So.2d 35, and cases cited. But in any event the ruling of the court of which appellant seems to be complaining was the overruling of an objection interposed after the witness had given an irresponsive answer to a question which was not objectionable. The proper procedure would have been to move to exclude the irresponsive answer. Ganey v. Henley, 260 Ala. 514, 71 So.2d 281; McBee v. McBee, 265 Ala. 414, 91 So.2d 675; Jones v. Lamb, 239 Ala. 225, 194 So. 652.

That which we are treating as the fourth assignment of error reads: 'The Court erred in sustaining the objection of the appellee to the question asked appellee to relate a conversation between appellee and the witness Marvin Edwards asked by the defendant for the purpose of impeaching the testimony of the appellee as a witness. (Transcript, Page 33)' A reading of page 33 of the transcript discloses that none of the testimony of the appellee, Clark, is set out on that page. Yet the assignment refers to the court's action in sustaining an objection to a question asked appellee. Moreover, this assignment is so indefinite and involved that it cannot be considered. Globe & Rutgers Fire Ins. Co. v. Jones, 213 Ala. 656, 106 So. 172; Western Steel Car & Foundry Co. v. Cunningham, 158 Ala. 369, 48 So. 109.

The evidence shows that the plaintiff and the defendant lived on adjoining lots in the city of Eufaula and that for serveral days prior to September 18, 1956, the defendant had been irritated with some of the actions of the plaintiff and of members of his family and had sworn out two warrants, one of which charged the plaintiff with disorderly conduct and the other charged him with creating a fire hazard. It is not clear from the evidence as to what was the basis of the disorderly conduct charge. Apparently the defendant took the position that too much noise was emanating from plaintiff's premises. These two warrants seem to have been sworn out on Monday, September 17, 1956. The fire hazard charge seems to have been based on the fact that on Saturday, September 15, the plaintiff after raking up his yard placed some leaves inside his garage, which was located only a few feet from the garage of the defendant.

The evidence for the plaintiff tends to show that at about 9:00 on Tuesday morning, September 18, 1956, while he was raking leaves in his yard the defendant called to him from his premises, saying among other things as follows: 'I want to tell you if you put another leaf in that garage I will kill you quick as a snake, and there won't be nothing dead but a mill hand * * * you won't go to jail next time, you will go to the cemetery.' To that remark the plaintiff replied: 'Brother, I didn't go to jail that time, and as far as the cemetery, one time is as good as another.' Following that remark the defendant went into his house and obtained his pistol. The plaintiff's testimony as to the events which followed is as follows: 'I had my back to him, and heard something behind me; the fact is I had my back turned that way, and I turned around and it was him coming through the hedge, and he had a pistol pointed right at me, and he didn't stop until he walked right up to me and stuck the pistol in my stomach, that close. (indicating) He said 'I asked you what you intended doing with those leaves, put them in the garage?' And he said 'I'll shoot your guts out, I'll shoot you half in two.' And the pistol made a noise like that. (indicating) And he held it there a while, and then he jerked it away from my stomach and struck me on the head with it; he was hitting me with the pistol in one hand and with his fist with the other hand. I throwed up, and was trying to knock the licks off with my hands, and the last lick he hit me on the arm with the pistol, and he must have got unbalanced, he dropped it. He moved to get the pistol back and I did too, and he beat me to it, and naturally I gave him a shove by it and I reached down and got the pistol, and at that time he went back over the hedge into his yard, and I brought the pistol down to the court house here and gave it to the police in the police department. He followed me here and wanted me locked up, and wanted the pistol back to finish the job. * * *'

The defendant did not deny that he hit the plaintiff over the head several times with the pistol, but he denied making several of the statements attributed to him. He stated, in effect, that he did not act until after the plaintiff made a threatening gesture. However, the credibility of the witnesses was for the jury's determination and under the evidence presented the jury was entitled to award punitive damages as for a highly aggravated assault attended with insult.

It is well established that a civil suits for damages for an assault or assault and battery, the jury in its discretion may award punitive damages whenever there is averment and proof tending to show that the act charged was wrongful and attended with an insult and other circumstances of aggravation. Birmingham Ry., Light & Power Co. v. Coleman, 181 Ala. 478, 61 So. 890; South Brilliant Coal Co. v. Williams, 206 Ala. 637, 91 So. 589; John R. Thompson & Co. v. Vildibill, 211 Ala. 199, 100 So. 139; Miller-Brent Lumber Co. v. Stewart, 166 Ala. 657, 51 So. 943; Kress v. Lawrence, 158 Ala. 652, 47 So. 574; Mitchell v. Gambill, 140 Ala. 316, 37 So. 290; Alabama Great Southern R. Co. v. Frazier, 93 Ala. 45, 9 So. 303; Avondale Mills v. Bryant, 10 Ala.App. 507, 63 So. 952; Empire Clothing Co. v. Hammons, 17 Ala.App. 60, 81 So. 838.

An assault and battery has always been a criminal offense in this state, so in each of the cases cited above a holding is implicit that the mere fact that the act complained of is a violation of a criminal law does not bar a recovery of punitive damages. In Alabama Great Southern R. Co. v. Sellers, 93 Ala. 9, 9 So. 375, there is express recognition of that principle. Louisiana and Indiana apparently hold to the contrary. Franklin v. Arkansas Fuel Oil Co., 218 La. 987, 51 So.2d 600; Angelloz v. Humble Oil and Refining Co., 196 La. 604, 199 So. 656; Skufakiss v. Duray, 85 Ind.App. 426, 154 N.E. 289; Anderson v. Evansville Brewing Ass'n, 49 Ind.App. 403, 97 N.E. 445. For cases from other jurisdictions expressly holding in accord with the majority rule that punitive damages may be recovered in a civil case, irrespective of the fact that the act complained of is punishable as a criminal offense, see Summers v. Keller, 152 Mo.App. 626, 133 S.W. 1180, judgment modified Keller v. Summers, 262 Mo. 324, 171 S.W. 336; Wirsing v. Smith, 222 Pa. 8, 70 A. 906; Donley v. Amerada Petroleum Corp., 152 Kan. 518, 106 P.2d 652; Pratt v. Duck, 28 Tenn.App. 502, 191 S.W.2d 562; Amos v. Prom, Inc., D.C., 115 F.Supp. 127; Bundy v. Maginess, 76 Cal. 532, 18 P. 668; Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293, 3 A.L.R.2d 203. See 25 C.J.S. Damages § 122; 15 Am.Jur., Damages, § 275.

In counties where the trial judge resides, as is the situation in this case, the following provisions of § 119, Title 13, Code 1940, have...