Morris v. McClellan

DOWDELL, J. This is an action to recover damages for an assault and battery committed on the plaintiff by the defendant. The defendant pleaded the general issue, and a number of special pleas, in which it was attempted to set up matter in justification of the assault. Demurrers were sustained to these pleas, and it is here insisted that the rulings of the court on the demurrers were erronous. The rule is well settled that, in a civil action to rcover damages for an assault and battery, justification for the alleged assault cannot be proven under the plea of the general issue, but must be specially pleaded. — Mitchell v. Gambill, 140 Ala. 316, 37 South. 290; Lunsford v. Walker, 93 Ala. 36, 8 South. 386. In such an action the burden is on the defendant to sustain [651] his plea of justification by legal and competent evidence sufficient to reasonably satisfy the jury. In pleading self-defense in justification, the plea, to be unobjectionable on demurrer, should aver every element or fact necessary under the law to constitute self-defense, if the cause had been a criminal prosecution, instead of a civil action. Where one, standing in the relation that authorizes him under the law to strike in the protection of another, is sued for an assault and battery for striking in protection of such other one, and undertakes to set up justification in defense of the action, there must not only be freedom from fault on the part of the person he sought to protect, but freedom from fault on his own part, as well as a necessity to commit the battery. Measuring the special pleas, to which demurrers were sustained, by this rule, no reversible error was committed by the court in its ruling. Nor did the court commit any error in refusing to allow the amendment offered to special plea K. The amendment which was offered did not meet the objections raised to the plea by the demurrer, and the plea would not thereby have been made sufficient. In criminal prosecutions, where the defense of self-defense is set up, while as a matter of law, to be of avail, the defendant must be free from’ fault in bringing on the difficulty, yet the rule of evidence does not place the burden of proof in showing freedom from fault on the defendant. — Lewis v. State, 120 Ala. 339, 25 South. 43; Naugher v. State, 116 Ala. 463, 23 South. 26; Cleveland v. State, 86 Ala. 1, 5 South. 426. We are unable to see any sound reason for applying a different rule in a civil action for damages for an assault. It is true that the measure of proof is different, in that in a criminal prosecution the evidence must satisfy beyond a reasonable doubt, while in a civil action it must reasonably satisfy; and the rule of pleading above stated, as to the suffi [652] ciency of a plea in setting up self-defense as a justification in a civil suit, does not alter the rule of evidence as to the burden of proof. The portion of the oral charge of the court, as well as the written charges given at the request of the plaintiff and those refused to the defendant, placing the burden of proof as to freedom from fault on the defendant, were erroneous. Charge 3, refused to the defendant, if good, was substantially covered by other charges given for the defendant. Charges 14 and 15 invaded the province of the jury, and were therefore properly refused. Charge 16 was argumntative. The witness Dr. Hogan was shown to be competent to testify as an expert as to the nature and character of the wound inflicted on the plaintiff, and, along this line, as to whether or not the said wound permanently impaired the plaintiff physically. The defendant’s plea H, on which issue was taken, rendered it competent for the plaintiff to show the conduct of John Morris, Sr., on the occasion in question. It was also competent to show all that occurred at the time of the difficulty and connected therewith as forming a part of the res gestae, and many of the objections raised by the defendant to the evidence were for this reason properly overruled. Rut we are unable to see how the evidence of Walter Morris going to Kinney’s house several minutes after the difficulty was over, and what he there said or did, could he competent and legal. It formed no part of the res gestae, and as to the defendant, John Morris, it was in the nature of hearsay evidence. It was error to admit this evidence, and it cannot be said that it was without prejudice to ¡he defendant. The plaintiff filed interrogatories to the defendant under section 1850 et seq. of the Code of 1896. Some of the questions propounded the defendant answered, and others he refused to answer on the ground that he could [653] not be required to give evidence which might subject him to crimina1 punishment. In so doing he exercised his constitution ul right. The interrogatories, with the ansAvers to certain questions and the refusal to answer others, Avere read to the jury. The defendant’s refusal to answer certain questions Avas the subject of comment in argument by counsel to the jury. The question is now presented whether it Avas permissible for the plaintiff, ove’* the defendant’s objection, to read to the jury those interrogtories which the defendant refused to, answer, and the defendant’s groundof refusal, and to comment on the same in argument, fin criminal prosecutions the failure or refusal of the defendant to testify cannot be commented n in argument; but we know of no authority applying this rule to civil actions, nor do Ave see any reason for so doing. The plaintiff in a civil action has rights, as well as the defendant; and one of these rights is to secure evidence to support his cause in court, even to calling upon the defendant as a witness to supply it. It has always been the rule in civil actions that the failure of a party to the suit, when present at the trial, to testify as to a fact in issue, furnished legitimate ground of comment in argument to the jury by the opposite party. The defendant availed himself of his constitutional right of refusal to answer on the ground stated, and he had his benefit and protection from prosecution in exercising his privilege; but he could not expect to< extend this privilege to the deprivation of the plaintiff of his right to comment in argument on his silence, no matter upon what ground he might put it. We are of the opinion that the trial court committed no error in its rulings on this question. / For the errors pointed out, the judgment will be reversed, and the cause remanded. [Reversed and remanded. [654] Haralson, Simpson, Anderson, and Denson, JJ., concur.