Barlow v. Hamilton , 151 Ala. 634 ( 1907 )

DENSON, J.

This is an action sounding in damages for an assault and battery alleged to have been committed on the plaintiff by the defendants, John H. Barlow, John Hasleum, John Sewell, and Bud Baxter. A verdict was rendered, finding the defendants Sewell and Baxter not guilty, and the defendants Barlow and Hasleum guilty, and assessing damages in the sum of $750. The judgment appealed from follows the verdict.

The only plea was the general issue — not guilty. Under the issue thus made, evidence tending to show the commission of the assault, or that it was not committed, the injury, if any, and the extent of it, and the circumstances attending the assault, was competent and relevant. But evidence of justification was not. — Lunsford v. Walker, 93 Ala. 36, 8 South. 386; Mitchell v. Gambill, 140 Ala. 316, 37 South. 290.

Plaintiff’s -witness, McCarty, testified that he saw the defendants Barlow and Hasleum take plaintiff by his arms and walk Avith him out of the house Avhere plaintiff Avas, and up the street, and the defendants SeAvell and Baxter Avalking along behind them. On cross-examination the defendants’ counsel asked the Avitness: “Did the .defendants hurt Mr. Hamilton?” The Avitness replied: “I suppose plaintiff’s feelings Avere hurt. It Avould have hurt my feelings.” Defendants’ counsel then asked the Avitness this question, “Mr. Hamilton didn’t look like he Avas hurt, did he?” The court sustained an objection to this question. In this ruling the court committed reversible error. Whether or not there Avas physical injury done the plaintiff, and, if there Avas, the extent of it, is one of the elements of damages under the second count; and, there being evidence tending to shoAV that Iavo of the defendants laid hands on the plaintiff, it Avas entirely competent for the defendants to offer evidence the tendency of Avhich Avould be to repel the inference of injury. Patently, this Avas the purpose of the question to which objection was sustained. The form of the question is not objectionable. Pain and suffering are natural manifestations attending physical injury, and may be detected in the look or facial expression of a person; and a Avitness, though he is not an expert, may testify to a person’s appearance or expression. — Stone & Best v. Watson, 37 Ala. 279, 288; S. & N. Ala. R. R. Co. v. McLendon, 63 Ala. 267, 276; Carney’s Case, 79 Ala. 14, 17; Jenkins’ Case, 82 Ala. 25, 2 South. 150; Houston’s Case, 78 Ala. 576, 56 Am. Rep. 59; Birmingham Railway & Electric Co. v. Franscomb, 124 Ala. 621, 27 South. 508; Mayberry’s Case, 107 Ala. 64, 18 South. 219.

The question asked witness Burton on cross-examination, “Did you see any violence committed on the person of the plaintiff by the defendants?” was a proper one, and the objection thereto should have been overruled. The question called for a concrete fact, and not an opinion. — So. Car Co. v. Bartlett, 137 Ala. 234, 34 South. 20; Birmingham Ry. & Elec. Co. v. Jackson, 136 Ala. 279, 34 South. 994. It makes no difference that the witness did not testify to any acts of violence in the examination in chief. The evidence sought to be elicited pertained to a fact embraced in the averments of the complaint. The authority cited by the appellee to sustain the proposition that it is within the discretion of the court to allow or not allow a witness, on cross-examination, to be interrogated about matters to which no reference was made in the examination in chief, does not support the proposition. The extent of the holding is that the matter of permitting one to propound leading questions to his own witness is confided to the .discretion of the court. — Huntsville Belt Line & Montesano Ry. Co. v. Corpening & Co., 97 Ala. 681, 687, 12 South. 295.

All other assignments of error relating to the rulings of the court on the admissibility of evidence that are insisted on have been carefully considered, and we find no merit in any of them.

Refused charges 1 and 2 are assigned for error, but the assignments are not insisted on.

Charge 3 was properly refused. What would be a lawful or unlawful purpose is a matter of technical legal learning, and should be defined by the court, and not left to the decision of the jury. — Jones’ Case, 79 Ala. 23.

Charge 4 invades the province of the jury, and was properly refused.

It is not necessary to pass on the action of the court in overruling the motion for a new trial. For the errors pointed out, the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Haralson and Simpson, JJ., concur.