Opinion
7 Div. 385.
April 26, 1923.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Hood Murphree, of Gadsden, for appellant.
The question and answer with reference to how many shells appellee started out with was incompetent and prejudicial. The oral charge of the court required of appellant too high a degree of proof in establishing his plea of self-defense. Torrey v. Burney, 113 Ala. 504, 21 So. 348; L. N. R. Co. v. Sullivan Timber Co., 126 Ala. 103, 27 So. 760; Greenwood Cafe v. Walsh, 15 Ala. App. 519, 74 So. 82; Blankenship v. State, 11 Ala. App. 125, 65 So. 860; Montgomery L. T. Co. v. Harris, 197 Ala. 236, 72 So. 545; Central of Georgia Ry. Co. v. Barnitz, 17 Ala. App. 201, 84 So. 474; Reid v. S. S. S. I. Co., 177 Ala. 262, 58 So. 301. It was error to instruct the jury that an absolute necessity to strike must have existed to justify appellant in striking appellee. Glass v. State, 201 Ala. 441, 78 So. 819; Minor v. State, 16 Ala. App. 401, 78 So. 317. The oral charge of the court invaded the province of the jury in assuming that the facts warranted the award of punitive damages, and left the awarding of such damages to the whim of the jury. Montgomery L. T. Co. v. Harris, supra; Central of Georgia Ry. Co. v. Barnitz, supra; B. R., L. P. Co. v. Coleman, 181 Ala. 484, 61 So. 890; 5 C. J. 705; Cox v. B. R., L. P. Co., 163 Ala. 172, 50 So. 975.
Alto V. Lee and W. J. Boykin, both of Gadsden, for appellee.
When the whole of the court's oral charge is read, there was no error in the excerpts excepted to Noblin v. State, 100 Ala. 13, 14 So. 767; McGehee v. State, 52 Ala. 224; Johnson v. State, 141 Ala. 37, 37 So. 456; Verberg v. State, 137 Ala. 73, 34 So. 848; Goley v. State, 87 Ala. 57, 6 So. 287.
1. There was no prejudicial error in permitting plaintiff's counsel to ask him how many shells he had when he "started off" hunting.
2. The question of self-defense to a civil action for assault and battery has been considered by this court. The authorities were recently collected in Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546 (2, 3). The exceptions to portions of the oral charge are specifically reserved. Knowles v. Blue (Ala. Sup.) 95 So. 481. When the whole charge is considered, there is no error in the defining of self-defense in such action. Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546 (2, 3), 548 (5).
Ante, p. 27.
3. The charge of the court on punitive damages, embracing that to which exception was reserved, is:
"If the plaintiff is entitled to recover, he is entitled to damages for the physical pain and mental anguish he endured, if any, as the result of the assault and battery, and, in addition, to the lost time shown by the evidence, at whatever that time is disclosed by the evidence to be worth. He is also entitled to recover, if at all, the amount of his doctor bill and whatever he had to expend to heal and cure himself from the wounds inflicted, and, in addition, you may, if you think you ought, impose such punishment — assess an amount as punishment against this defendant as will deter him from committing a like offense, and whatever you impose, impose it fairly, without prejudice or passion, and all those items, added together, would be the amount of your verdict."
The charge, when referred to the evidence, was not erroneous. The injuries were inflicted by cutting plaintiff with a knife in the manner and to the extent clearly shown by the evidence. The rules of this court relating to instructions as to punitive damages, when malice is or is not shown, need not be here repeated. Wilkinson v. Searcy, 76 Ala. 176, 180, 181; Cook v. Southern R. Co., 153 Ala. 118, 45 So. 156; Coleman v. Pepper, 159 Ala. 310, 313, 49 So. 310; Cox v. B. R. L. P. Co., 163 Ala. 170, 172, 50 So. 975; S. A. L. Ry. Co. v. Standifer, 190 Ala. 260, 67 So. 391; Howton v. Mathias, 197 Ala. 457, 463, 73 So. 92; Comer v. Advertiser Co., 201 Ala. 159, 77 So. 685; Jones v. Woodward Iron Co., 203 Ala. 66, 82 So. 26; Parisian Co. v. Williams, 203 Ala. 378, 83 So. 122; First Nat. Bank v. Stewart, 204 Ala. 199, 85 So. 529, 13 A.L.R. 302.
The foregoing instruction was without error. It did not leave the imposition of punitive damages to the unbridled discretion of the jury and as disassociated from the fact of aggravation shown by the evidence.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.