Sherrill v. Naylor

• Decision Date: 03 October 1939
• Docket Number: 8 Div. 834.
• Citation: 193 So. 182,29 Ala.App. 103
• Parties: SHERRILL v. NAYLOR.
• Court: Alabama Court of Appeals

193 So. 182

29 Ala.App. 103

SHERRILL v. NAYLOR.

8 Div. 834.

Court of Appeals of Alabama

October 3, 1939

Rehearing Denied Oct. 31, 1939.

Appeal from Circuit Court, Lawrence County; W. W. Callahan, Judge.

Action for assault and battery by T. W. Naylor against Mary Sherrill. From a judgment for plaintiff, defendant appeals.

Affirmed.

Certiorari denied by Supreme Court in Sherrill v. Naylor (8 Div. 22) 193 So. 185.

John W Sherrill, Jr. and S. A. Lynne, both of Decatur, for appellant.

E. W Godbey, of Decatur, for appellee.

SAMFORD, Judge.

Count One of the complaint is as follows: "Count 1: The plaintiff claims of the defendant the sum of Ten Thousand ($10,000) Dollars as damages, for that, heretofore on or about the 14th day of June, 1936, the plaintiff in the early afternoon was lying peacefully asleep in an outhouse or barn on the premises of one, Oscar (Austin) Owens, a tenant, on the plantation of defendant, or of her husband, S. L Sherrill, at which time and place defendant wrongfully poured crude coal oil, petroleum, or other hurtful liquid on the plaintiff, whereby plaintiff's eyes, head, shoulders, and back were caused to be burned, blistered, and inflamed, and made sore; and plaintiff was thereby caused to suffer great mental and physical agony, and was caused to lose sleep and rest. The leaders or muscles in the back part of his neck were thereby approximately caused to be drawn, strained, and made painful; and plaintiff's earning capacity and his ability to work and to earn money were greatly diminished and impaired, and his health undermined, and his physical powers permanently weakened." This count being taken as it is written charges an assault and battery by the defendant on the person of the plaintiff, and is not subject to any ground of demurrer interposed. Even eliminating the word "wrongfully", which defendant claims is a conclusion of the pleader, the count charges an assault and battery which would justify a recovery.

The allegations in the count were sufficient to justify a recovery of compensatory damages for physical pain or mental anguish. Miller v. McGuire, 202 Ala. 351, 80 So 433.

The pleas filed by the defendant to the complaint were by way of confession and avoidance, but it is not averred in said pleas that the assault and battery alleged in the complaint was at the same time or immediately connected with the alleged misconduct of the plaintiff. Nor, were the facts alleged in the pleas sufficient to connect the act of defendant with the alleged misconduct of the plaintiff. The facts as set up in the several pleas do not present a defense to this action. The demurrers to the pleas were properly sustained.

The facts as shown by this record on the part of the plaintiff tend to prove that the plaintiff was lying in a barn, or outhouse, on the plantation of the defendant; said barn being connected with the residence of a tenant on defendant's place; that the plaintiff had been taken to the outhouse by the occupant of the tenant house and there left in a condition of inebriety; that he was unconscious, helpless and that this condition was either from alcohol or that he was sound asleep; that while in this condition the defendant came to the door of the outhouse and threw a lot of coal oil on plaintiff's face and shoulders, causing serious injury to his eyes, his skin and his shoulders, producing blisters which were painful and injurious and required medical attention.

There was some evidence tending to prove that the outhouse in which plaintiff was asleep, or unconscious, was not in the possession of the defendant at the time of the assault, but was in the possession of her tenant.

But, as to this, we think the whole inquiry was immaterial. Granting for the sake of the argument, that defendant was in possession of the outhouse; that plaintiff was in the outhouse after he had been warned to stay out; and granting further, that defendant had a right to eject plaintiff from the premises, these facts did not give to the defendant the right to throw on the face and body of the unconscious and defenseless plaintiff the noxious or poisonous fluid which, according to the inferences to be drawn from the evidence, she did. If the plaintiff was to be ejected, defendant had her adequate remedy in a legal way to have accomplished this fact....