Opinion
6 Div. 495.
October 20, 1921. Rehearing Denied November 17, 1921.
Appeal from Circuit Court, Marion County; T. L. Sowell, Judge.
E. B. K. V. Fite, of Hamilton, for appellant.
The right to properly eject a trespasser is undoubted. 14 Ala. App. 327, 70 So. 206; 64 So. 185; 5 C. J. 632. Exemplary or punitive damages cannot be recovered, without proof of actual damage. 161 Ala. 114, 49 So. 461; 5 C. J. 707. The amount awarded indicates passion, prejudice, or improper motive, and authorized and required the setting aside of the verdict. 202 Ala. 352, 80 So. 434; 124 Ala. 409, 27 So. 471; 201 Ala. 207, 77 So. 733; 204 Ala. 547, 86 So. 389; 10 Ala. App. 507, 63 So. 932; 158 Ala. 652, 47 So. 574; 119 Miss. 791, 81 So. 276; 131 La. 915, 60 So. 615; 25 Fla. 980, 7 So. 172; 141 La. 829, 75 So. 738; 40 La. Ann. 64, 3 So. 462.
J. G. Long, of Winfield, and W. F. Finch, of Jasper, for appellee.
Plaintiff was an invitee and not a trespasser. 189 Ala. 643, 66 So. 609; 6 Ala. App. 448, 60 So. 475; 192 Ala. 501, 68 So. 358; 14 Ala. App. 337, 70 So. 285; 196 Ala. 604, 72 So. 161; 77 So. 695. When self-defense is set up, the burden is on the pleader to show that he was free from fault in bringing on the difficulty. 77 So. 335; 15 Ala. App. 519, 74 So. 82. The jury under the pleading may assess exemplary or punitive damages, and the verdict should not be disturbed on that theory. 10 Ala. App. 507, 63 So. 932; 130 Ala. 334, 30 So. 456, 54 L.R.A. 752, 89 Am. St. Rep. 43; 175 Ala. 319, 57 So. 718, 40 L.R.A. (N.S.) 998; 195 Ala. 312, 70 So. 279; 187 Ala. 458, 65 So. 402; 194 Ala. 338, 70 So. 7; 158 Ala. 652, 47 So. 574; 14 Ala. App. 327, 70 So. 206; 203 Ala. 284, 82 So. 534; 175 Ala. 60, 56 So. 574.
On the testimony of plaintiff and the witness Southern, the jury could have found that plaintiff was either an invitee or a licensee on defendant's premises at the time of his altercation with defendant's superintendent, Gibbs, and the requested instruction that he was a trespasser was properly refused.
Very clearly the jury could not have been restricted, under the testimony before them, to an award of nominal damages merely. Apart from the features of insult and indignity and hurt to feelings, existent in this case, and for which damages could be given (Republic, etc., Co. v. Self, 192 Ala. 403, 68 So. 328, 330, L.R.A. 1915F, 516), it was within the sound discretion of the jury to award punitive damages also, in view of the circumstances accompanying the assault, as narrated by the witness for plaintiff (Mitchell v. Gambill, 140 Ala. 316, 37 So. 290; Greenwood Cafe v. Walsh, 15 Ala. App. 519, 74 So. 82).
If, as plaintiff and his witness testified, Gibbs kicked plaintiff with his foot, it cannot be said, as a matter of law, that there was no physical injury to him. In a legal sense it was a physical injury, though it may have caused no physical suffering, and though the sensation resulting therefrom may have lasted for but a moment. Charge No. 4 was therefore properly refused.
The fact that plaintiff was not free from fault in bringing on the difficulty would not prevent a recovery, if the resulting assault or battery was accompanied by greater force than was necessary for the purposes of self-defense. Abney v. Mize, 155 Ala. 391, 46 So. 230. Under the evidence, that was a question for the jury in this case, and charge No. 6 was properly refused.
It is earnestly insisted that defendant's motion for a new trial should have been granted, because the verdict for $1,000 was, under the evidence, so excessive as to indicate that it was the result of passion or prejudice or other improper motive.
We have examined the evidence with due care, and we are of the opinion that, if the jury believed the testimony of plaintiff and his four witnesses, as they may have done, the amount of the verdict cannot be pronounced so clearly excessive as to justify setting it aside. Punitive damages may have been included — as undoubtedly they were — as for a highly aggravated assault, and the discretion of the jury as to the amount awarded, within reasonable limits, must not be denied by the court.
Let the judgment be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.