Powell v. West

SOMERVILLE, J. The action is for an assault and battery. Count 1 is in the code form, and under it there could he a recovery of punitive damages, though not specially claimed. Mitchell v. Gambill, 140 Ala. 316, 37 South. 290; Wilkinson v. Searcy, 76 Ala. 176; Standard Oil Co. v. Davis, post, p. 565, 94 South. 754. Count 2 contains additional allegations of the use of insulting language— ,ii * * * greatiy humiliating, wounding, and bruising and maltreating the plaintiff, causing her much mental pain and anguish [and] to suffer from severe wounds and bruises.” Under this count there could be a recovery of punitive damages, and also of compensatory damages for the injuries specially alleged. This count is not subject to demurrer on the theory that it does not clearly show that the special injuries alleged were the result of the battery rather than of the insulting language. “Wounding, and bruising and maltreating” cannot be imputed to the insulting language referred to; and, even if the complaint of humiliation in the presence of other people might he referable to that cause, and therefore not a proper element of damage, it should have been eliminated by motion to strike, or by objection to the evidence, or by instructions to the jury, as has been frequently declared by our decisions. The trial judge properly excluded de,fendant’s -question to plaintiff’s mother on cross-examination: “Is it not true that Mrs. Powell [the defendant] had asked you all to vacate this room, some weeks or a few days before this thing occurred?” Its relevancy is not apparent, and it could llave no legal bearing on the issues in the case.' Whether or not a suit brought by plaintiff against another person for injuries suffered in an automobile collision several months previous was still pending was clearly irrelevant, and the question was properly excluded. Nor was it proper for defendant to show by a police officer that he had searched the hotel room and the restaurant of the Wests, shortly before this altercation, though that occurrence might have prompted the conversation between defendant and plaintiff’s mother immediately preceding the alleged assault on plaintiff, since it could have no legitimate bearing on the issues in the case. Charge No. 1, refused to plaintiff, was fairly covered by the oral charge, and its refusal was not prejudicial. Charge 2, for the same reason, was refused without error. It was, moreover, erroneous, since notwithstanding the fact that plaintiff provoked and brought on the difficulty, and attacked defendant first, if so, she could nevertheless recover if defendant retaliated excessively. Bynum v. Jones, 177 Ala. 431, 59 South. 65; Abney v. Mize, 153 Ala. 391, 46 South. 230. Charges 3 and 4 were properly refused, *390 since the jury might, under the evidence, have awarded punitive damages under either count, and also special damages under count 2. Charges 5 and 6 were on the effect of evidence, and for that reason were properly refused; moreover, the status of plaintiff and her family as renters of a room in the hotel had no bearing on the issues presented by the pleadings and evidence. Charge 7 was properly refused as being abstract, if not otherwise bad, since the evidence had no tendency to show that plaintiff “was interfering with the business of defendant in the management or operation of her hotel.” We find no prejudicial error in the record, and the judgment will he affirmed. Affirmed. ANDERSON, C. X, and McCLELLAN and THOMAS, JX, concur.