Sherrill v. Naylor, 8 Div. 834.

CourtAlabama Court of Appeals
Citation193 So. 182,29 Ala.App. 103
Docket Number8 Div. 834.
PartiesSHERRILL v. NAYLOR.
Decision Date03 October 1939

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. [193 So. 183]

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

E. W. Godbey, of Decatur, for appellee.

[29 Ala.App. 105] 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;...

To continue reading

Request your trial
3 practice notes
  • Eldred v. Burns et al.
    • United States
    • Supreme Court of Oregon
    • July 1, 1947
    ...The law does not countenance the use of a deadly weapon for such purpose. State v. Bartmess, 33 Or. 110, 54 P. 167; Sherrill v. Naylor, 29 Ala. App. 103, 193 So. 182; Newcome v. Russell, 133 Ky. 29, 118 S.W. 305, 22 L.R.A. (N.S.) 724 and annotation; Newman v. Southern Kraft Corporation, (La......
  • Jones v. State, 4 Div. 497.
    • United States
    • Alabama Court of Appeals
    • November 28, 1939
    ...J. Shelby Jones was convicted of assault, and he appeals. Affirmed. Certiorari denied by Supreme Court in Jones v. State (4 Div. 125) 193 So. 182. [193 So. 180] John Casey Walters, of Troy, for appellant. Thos. S. Lawson, Atty. Gen., and Noble J. Russell, Asst. Atty. Gen., for the State. BR......
  • Sherrill v. Naylor, 8 Div. 22.
    • United States
    • Alabama Supreme Court
    • November 23, 1939
    ...for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Sherrill v. Naylor, 193 So. 182. Writ denied. ANDERSON, C.J., and GARDNER and FOSTER, JJ., concur. ...
3 cases
  • Eldred v. Burns et al.
    • United States
    • Supreme Court of Oregon
    • July 1, 1947
    ...The law does not countenance the use of a deadly weapon for such purpose. State v. Bartmess, 33 Or. 110, 54 P. 167; Sherrill v. Naylor, 29 Ala. App. 103, 193 So. 182; Newcome v. Russell, 133 Ky. 29, 118 S.W. 305, 22 L.R.A. (N.S.) 724 and annotation; Newman v. Southern Kraft Corporation, (La......
  • Jones v. State, 4 Div. 497.
    • United States
    • Alabama Court of Appeals
    • November 28, 1939
    ...J. Shelby Jones was convicted of assault, and he appeals. Affirmed. Certiorari denied by Supreme Court in Jones v. State (4 Div. 125) 193 So. 182. [193 So. 180] John Casey Walters, of Troy, for appellant. Thos. S. Lawson, Atty. Gen., and Noble J. Russell, Asst. Atty. Gen., for the State. BR......
  • Sherrill v. Naylor, 8 Div. 22.
    • United States
    • Alabama Supreme Court
    • November 23, 1939
    ...for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Sherrill v. Naylor, 193 So. 182. Writ denied. ANDERSON, C.J., and GARDNER and FOSTER, JJ., concur. ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT