Allen v. Bannister

SAYRE, J. Bannister sued Allen in three counts, all in Code form, viz. assault and battery, false imprisonment, and malicious prosecution, and recovered judgment in the sum of $1,000. Defendant moved for a continuance and then asked to be allowed to make a showing for two absent witnesses. Exceptions were reserved to the- court’s adverse rulings in both instances. Stating the reason for its refusal to wait for a showing, the court observed that the cause had been set for trial on Tuesday of the then current week, and was called for trial on Thursday; that defendant had been in attendance upon the court since Tuesday; and, in effect, that the showing should have been ready. In these rulings we find no abuse of the court’s discretion, and hence no cause for a reversal. McLaughlin v. Beyers, 175 Ala. 545, 57 South. 716. Count 3 of the complaint alleged damages in no amount; that is, it claimed of the “defendants for maliciously, and without probable cause therefor, causing the plaintiff to he arrested under a warrant,” etc., *265 without any allegation of wliat it claimed.; As to this count the court refused the general affirmative charge requested by defendant. The argument for error on this assignment is that the count fails to state a cause of action. The judgment of the court is that the count alleged enough to justify the assessment of nominal damages, and, therefore, that reversible error cannot be predicated of the action of the court in refusing the charge. Tliis litigation had its origin in a- personal difficulty between plaintiff and defendant. In his oral charge the court said to the jury: “It is without dispute in the evidence that defendant did institute a prosecution the next day after this man [plaintiff! had been put in jail. It is also without dispute in the evidence that the prosecution has been investigated, the jiroseeution ended, and this plaintiff discharged.” To those statements defendant duly excepted. The evidence in support of the facts stated by the court was clear, direct, and without dispute. In these circumstances it was not error for the court, in stating the law to the jury, to assume these facts as proved, or to state them without hypothesis. Montgomery v. Wyche, 169 Ala. 181, 195, 53 South. 786; Carter v. Chambers, 79 Ala. 223. Plaintiff at the time of the difficulty was a tenant upon the lands of defendant, where he had a growing crop. Plaintiff sought and was allowed to recover damages for the loss of his crop as a proximate result of the assault upon him committed by defendant. Defendant opposed this claim in various ways, and the question thus raised is tire main subject of controversy on this appeal. The element of special damage was alleged in the complaint, and there was evidence tending to show that during the difficulty defendant threatened plaintiff with a pistol and told him that if he came on the place again he would kill him. Probably evidence going to show that defendant had a bad reputation in the neighborhood shed some light on the due weight to be attached to this threat. This court is of opinion that, if the threat alleged and offered in evidence was the proximate moving cause of plaintiff’s abandonment of his crop and that such was the course of reasonable prudence, then the present value of the crop — of which there was evidence — constituted an element of recoverable damages. The judgment, for aught appearing, is due to be affirmed; and it is accordingly so ordered. Affirmed. ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.