Opinion
6 Div. 934.
November 25, 1927.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Barber Barber, of Birmingham, for appellant.
Count 2 is in case, and the averments sufficiently set forth the damages as being consequential and resulting from the wrongful acts of defendants or their agents as averred. Sparks v. McCreary, 156 Ala. 382, 46 So. 332, 22 L.R.A. (N.S.) 1224; City Del. Co. v. Henry, 139 Ala. 161, 34 So. 389; Ala. Mid. R. Co. v. Martin, 100 Ala. 511, 14 So. 401; 21 Ency. Pl. Pr. 917; Tenn. Co. v. Kelly, 163 Ala. 348, 50 So. 1008; Southern Finance Co. v. Foster, 19 Ala. App. 109, 95 So. 338; Peerson v. Ashcraft, 201 Ala. 348, 78 So. 204, L.R.A. 1918D, 540.
David J. Davis, of Birmingham, for appellees.
Mere words, although they are abusive and threatening in character, are not actionable in trespass to persons, however morally wrong they may be. 38 Cyc. 999. Mere words or threats, however provoking or insulting, do not constitute an assault without an actual offer of physical violence. 5 Cyc. 617. In order for defamatory words to constitute actionable liability or slander, they must be published.
It is established in this jurisdiction to present for review the ruling of a trial court that caused a nonsuit, it must be made reasonably apparent or certain from the record that such action of appellant was suffered because of said ruling. Schillinger v. Wickersham, 199 Ala. 612, 75 So. 11; Herrmann v. Mobile County, 202 Ala. 274, 80 So. 112; Kennedy v. Lyric Theatre Co., 213 Ala. 153, 104 So. 274; Epperson v. First National Bank, 209 Ala. 12, 95 So. 343; Bush v. Russell, 180 Ala. 590, 61 So. 373; Guiler v. United States Cast Iron Pipe Foundry Co., 197 Ala. 233, 72 So. 498; Berlin Machine Works v. Ewart Lumber Co., 184 Ala. 272, 63 So. 567; Ex parte Martin, 180 Ala. 620, 61 So. 905. However this may be, we prefer to rest the decision on the merits of the court's ruling in sustaining demurrer to count 2. In this there was no error.
When the said count is analyzed it amounts to allegations of a loan, the charge of usurious interest thereon, payment of the lawful amount, and the repeated demand for further payments by reason of the usury charged. The action for verbal abuse is slander, and words used, when not accompanied by an assault, are not the subject of actionable damages. Republic Iron Steel Co. v. Self, 192 Ala. 403, 409, 68 So. 328, L.R.A. 1915F, 516. It is not contended that defendants published any words amounting to libel or slander, committed any act of physical violence, interfered with plaintiff's free conduct as an individual, and with his contractual or business relations, or in any way interfered with appellant's property. The use by defendants of mere words to plaintiff, which had not the effect to injure him physically and were not accompanied with an actual offer of physical violence, or did not interfere with his contractual relations and property rights, are not actionable as a trespass to the person, or as libel or slander. 38 Cyc. 999; 5 C. J. 617; L.R.A. 1915F, 516.
The case of Sparks v. McCreary, 156 Ala. 382, 47 So. 332, 22 L.R.A. (N.S.) 1224, was an action for damages for injury to business or calling; and Tennessee Coal, Iron R. Co. v. Kelly, 163 Ala. 348, 50 So. 1008, was for damages for depriving one of employment; and Southern Finance Co. v. Foster, 19 Ala. App. 109, 95 So. 338, was for causing the termination of contractual relations. The second count was not within the influence of the last cases that are cited, and was properly challenged by demurrer.
Affirmed.
ANDERSON, C. J., and BOULDIN and BROWN, JJ., concur.