South Brilliant Coal Co. v. Williams

SOMERVILLE, J. [1] 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 tbe requested instruction that be was a trespasser was properly refused. [2, 3] Very clearly the jury could not have been restricted, under tbe testimony before them, to an award of nominal damages merely. Apart from the features of insult and indignity aud hurt to feelings, existent in this case, and for which damages could be given (Republic, etc., Co. v. Self, 192 Ala. 403, 68 South. 328, 330, L. R. A. 1915F, 516), it was within tbe sound discretion of tbe jury to award punitive damages also, in view of tlie circumstances accompanying the assault, as narrated by tbe witness for plaintiff (Mitchell v. Gambill, 140 Ala. 316, 37 South. 290; Greenwood Cafe v. Walsh, 15 Ala. App. 519, 74 South. 82). [4] 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 phj'sieal 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. [5, 6] Tbe fact that plaintiff was not free from fault in bringing on tbe difficulty would not prevent a recovery, if tbe resulting assault or battery was accompanied by greater force than was necessary for tbe purposes of self-defense. Abney v. Mize, 155 Ala. 391, 46 South. 230. Under the evidence, that was a question for the jury iu this case, and charge No. 6 was properly refused. [7] It is earnestly insisted that defendant’s motion for a new trial should have been granted, because tbe verdict for $1,000 was, under tbe evidence, so excessive as to indicate that it was the result of passion ox-prejudice or other improper motive. [8] We have examined the evidence with due care, and we are of the opinion that, if the jury believed tbe testimony of plaintiff and bis four witnesses, as they may have done, tbe amount of tbe 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 tbe discretion of tbe jury as to tbe amount awarded, within reasonable limits, must not be denied by tbe court. Let tbe judgment be affirmed. Affirmed. ANDERSON, C. J., and kcCLELLAN and THOMAS, JJ., concur.