Vest v. Speakman

• Decision Date: 28 November 1907
• Citation: 44 So. 1017,153 Ala. 393
• Parties: VEST v. SPEAKMAN.
• Court: Alabama Supreme Court

44 So. 1017

153 Ala. 393

VEST v. SPEAKMAN.

Supreme Court of Alabama

November 28, 1907

Appeal from Circuit Court, Morgan County; D. W. Speake, Judge.

Action by W. I. Speakman against J. W. Vest for slander and assault and battery. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The first count in the complaint charges slander, in that defendant said of and concerning plaintiff, falsely and maliciously, in the presence of divers persons: "You burned my barn on or about the 14th or 16th day of October." The second count is for assault and battery. The third count was for assault and battery, with the additional averment that it was committed maliciously vindictively, and without probable cause, and accompanied with the use of opprobrious epithets, and in the presence of divers and sundry persons, and on a public street. Counts 4 and 5 are omitted from the record. Count 6 was for slander in that the defendant spoke falsely and maliciously of and concerning plaintiff in the following language: "Did you burn my barn? Well, you know who did it"--with the further averment that defendant's barn had been burned in the nighttime previous to the speaking of the words above used, and that plaintiff had no duties to perform in connection with said barn. This complaint was attacked by demurrer for misjoinder of counts, and the counts alleging assault and battery were attacked on account of containing the allegation of the use of opprobrious epithets, and that the assault and battery was committed in the presence of divers persons. The other facts sufficiently appear from the opinion.

John R Sample and Wert & Wert, for appellant.

E. W Godby, W. W. Callahan, and P. M. Brindley, for appellee.

DOWDELL J.

In the complaint are joined counts for slander with counts for an assault and battery. This is not permissible. An action for slander is an action in case, while an action for an assault and battery is in trespass. Prior to the act of February 17 1885 (Acts 1884-85, p. 125), and which, with a slight change, was adopted into the Code of 1886 as section 2673, and brought forward into the Code of 1896 as section 3293, counts in trespass and counts in case could not be joined in the same complaint under any circumstances, and when so joined rendered the complaint demurrable for misjoinder. 1 Brick. Dig. p. 24, § 51; 2 Mayfield's Dig. p. 43, § 19. The act of February 17, 1885, provided as follows: "That counts in trespass and counts in trespass on the case may be joined in the same action when the counts so united relate to the same injury or subject-matter." This act, as adopted into Code 1896, § 3293, reads as follows: "Counts in trespass and in trespass on the case may be joined, when they...